A federal judge said Tuesday that a California woman who was found guilty of charges related to the January 6, 2021, Capitol riot “followed then-President Trump’s instructions,” language that experts believe could come back to haunt the former president in a potential criminal case.
Trump is not currently charged in relation to the Capitol attack, when a mob of his supporters stormed the building in an effort to stop the certification of President Joe Biden‘s 2020 election victory.
But last month, the now-dissolved House committee that investigated the riot referred Trump to the Justice Department for charges including inciting or assisting an insurrection.
Before his supporters stormed the Capitol, Trump held the Stop the Steal rally, where he warned attendees that they wouldn’t “have a country anymore” if they didn’t “fight like hell.” Trump’s actions at Stop the Steal were front and center in District Judge Colleen Kollar-Kotelly Tuesday opinion in Danean MacAndrew’s January 6 case.
Kollar-Kotelly said that Trump “eponymously exhorted his supporters to, in fact, stop the steal by marching to the Capitol” at the January 6 rally. Despite seeing numerous signs that her presence at the Capitol was unlawful, MacAndrew continued on as she was “heeding the call of former President Trump,” Kollar-Kotelly wrote.
The judge’s assertion in her findings of fact “have no direct legal effect” on the ongoing January 6 investigation, but it should not be disregarded all the same, according to former federal prosecutor Michael McAuliffe.
McAuliffe told Newsweek that “it is notable whenever a federal judge publicly attributes criminal behavior to following the directives of a then sitting president.”
“It’s one more sign that the evidence in an ever larger number of January 6th insurrection prosecutions points to Trump as a culpable participant,” he added.
Bill Dunlap, a law professor at Quinnipiac University, believes that Kollar-Kotelly’s finding will likely not play a “significant role” in any future charges against Trump. Dunlap told Newsweek that the judge’s main point was establishing that MacAndrew did what she did knowingly and intentionally when she “joined the protest at Trump’s behest.”
But there have been other January 6 defendants who blamed Trump for what happened that day, with some saying they believed they were following his orders, Axios reported.
“The fact that so many of the January 6 protesters have pointed to Trump’s speech as a motivating factor will very likely come into play” in a potential criminal case where he is accused of inciting an insurrection, Dunlap said.
Craig Trocino, an attorney, professor and director of the University of Miami School of Law’s Innocence Clinic, also noted that other January 6 defendants have tried to defend their actions by pointing to Trump. The extent of the impact of Kollar-Kotelly’s finding of fact would depend on what Trump was charged with if he was indicted.
If Trump was charged with inciting an insurrection, “then the language and conduct of incitement becomes relevant,” Trocino told Newsweek. He added that when Trump’s language and conduct becomes relevant, the subsequent actions of people who heard him also become relevant.
“And now we have a court finding that this individual went and did what she did in direct relationship to the words that were used,” Trocino said.
Whether this could be used against Trump remains to be seen, but “I think it definitely points in that direction,” he said.
Prosecutors may also be emboldened to indict Trump because of Kollar-Kotelly’s language, according to Tamara Lave, a former San Diego public defender and law professor in the University of Miami’s School of Law.
Attorney General Merrick Garland has faced pressure from Democrats to indict Trump for January 6, while Republicans have railed against the idea of Trump being prosecuted.
Though any prosecutor who indicts Trump would still have to prove his guilt on any charges beyond a reasonable doubt, Kollar-Kotelly’s language could provide “political cover” to a prosecutor who wants to take on a case against the former president, Lave told Newsweek.
Newsweek reached out to a lawyer for Trump for comment.
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