U.S. District Judge Tanya Chutkan issued an order on Nov. 17 denying former President Donald Trump’s attempts to remove from his indictment certain statements related to the events of Jan. 6, 2021, at the U.S. Capitol.
President Trump’s legal team, she said, had failed to show that inclusion of the statements was “prejudicial,” as required by federal law.
His attorneys had argued that the indictment, which didn’t charge President Trump for the events at the Capitol, contained irrelevant claims about communications with former Vice President Mike Pence and former President Trump’s reaction to rioting.
“Because the Government has not charged President Trump with responsibility for the actions at the Capitol on January 6, 2021, allegations related to these actions are not relevant and are prejudicial and inflammatory,” his attorneys wrote. According to them, doing so could unfairly bias a jury.
“But,” Judge Chutkan responded on Nov. 17, that “consistent with its past practice, this court will not provide a copy of the indictment to jurors, eliminating that source of potential prejudice.”
The special counsel’s office has maintained that it does hold President Trump responsible for the events on Jan. 6. In a response to President Trump’s motion, DOJ attorney Molly Gaston said, “The defendant’s motion is premised on the disingenuous claim that he is not charged with ’responsibility for the actions at the Capitol on January 6, 2021.' But the indictment clearly alleges, and the Government will prove at trial, that the defendant bears such responsibility.”
Prosecutors revealed that the evidence they will use includes President Trump’s speech, geolocation of President Trump and his supporters to establish that “many of the defendant’s supporters responded to his direction,” and other videos and photos from that day. They allege that President Trump “used” the crowd to “pressure” Vice President Mike Pence, and added they “will prove at trial” this was the case.
Judge Chutkan’s order also pushed back on the defense’s idea that there was “voluminous evidence” that a jury pool might be exposed to the indictment’s language through media coverage of the case.
“Defendant fails to cite even one example of that evidence,” Judge Chutkan wrote.
“In any event, the voir dire process will allow the court to examine and address the effects that pretrial publicity, including any generated by Defendant, has had on the impartiality of potential jurors. When trial begins, the court will also take steps to screen from the jury any irrelevant and prejudicial material that either party seeks to introduce. Moreover, before the jurors deliberate, the court will instruct them on the actual charges and the evidence they may consider in their deliberations.”
What the Indictment Says
The defense’s Oct. 23 motion argued that paragraphs 10(d) and 105-113 of DOJ’s indictment contained irrelevant and inflammatory information about Jan. 6.Paragraph 10(d) of the indictment alleges that President Trump and “his co-conspirators” attempted to enlist Mr. Pence “to fraudulently alter the election results.” It adds: “When that failed, on the morning of January 6, the Defendant and co-conspirators repeated knowingly false claims of election fraud to gathered supporters, falsely told them that the Vice President had the authority to and might alter the election results, and directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.”
The other cited portions included information about attacks on law enforcement, individuals breaking into the Capitol, President Trump’s refusal to “issue a calming message aimed at the rioters,” and how some members in the crowd at the Capitol chanted, “Hang Mike Pence!”
Immediately following the cited portions, the indictment notes that President Trump told supporters to stay peaceful and support law enforcement. It complains, however, that the president didn’t approve a message telling rioters to leave the Capitol.
President Trump’s attorneys said in their Oct. 23 filing: “The public has high awareness of, and strong views regarding, the actions at the Capitol on January 6, 2021.”
“Allegations in the indictment relating to these actions, when President Trump has not been charged with responsibility for them, is highly prejudicial and inflammatory because members of the jury may wrongfully impute fault to President Trump for these actions.”
They added that “removing the allegations will not impair the Government’s case against President Trump, but it will substantially lessen the prejudice to him.”
The filing also quoted Andy McCarthy, a conservative author and former federal prosecutor, accusing the DOJ of “wav[ing] the bloody shirt.”
Mr. McCarthy penned an Aug. 2 op-ed for the New York Post in which he accuses Special Counsel Jack Smith of intending “to try Trump for the Capitol riot even though he hasn’t charged Trump for the Capitol riot.”
That was, according to Mr. McCarthy, the “worst” outrage of the indictment. He speculated that Mr. Smith “hopes to incite a Democrat-friendly Washington, DC, jury into convicting Trump despite the infirmity of the fraud, obstruction and civil-rights allegations in the case—i.e., to convict him for the Capitol riot despite failing to charge him for the Capitol riot.”
