The Senate may have acquitted Donald Trump of inciting an insurrection, but the former president still faces accusations of incitement from another source: Capitol rioters themselves.
Attorneys for at least seven accused rioters have referenced Mr. Trump in efforts to explain their clients' actions, according to statements and documents reviewed by CBS News.
The attorney for Matthew Ryan Miller — who was allegedly photographed discharging a fire extinguisher on the steps of the U.S. Capitol — said during a hearing Tuesday that his client was "there at the behest of then-President Trump." He wrote in a February 7 filing arguing for his client's pretrial release, "Mr. Miller concedes he was on the Capitol grounds to protest along with thousands of other protesters and was merely following the directions of then-President Trump, the country's chief law enforcement officer, and other speakers to march to the Capitol."
Similarly, the defense attorney for Ethan Nordean, an accused Proud Boys member, wrote in a filing that then-President Trump "egged on" his client.
A lawyer for accused Proud Boy Dominic Pezzola wrote that his client was "duped," and was "responding to the entreaties of the then commander in chief."
The strategy is similar to an "advice of counsel" defense, says Randy Zelin, a criminal defense attorney at Wilk Auslander LLP and an adjunct professor at Cornell Law School. The tactic argues that a defendant couldn't have had criminal intent if they were acting on advice from their attorney. Although Mr. Trump isn't an attorney, Zelin says there is a notion that if someone who makes the laws tells you what to do, someone could argue they had no intention to break the law.
"The president of the United States telling you that it's OK to do something or telling you to do something — that destroys your intention, your intent to commit a crime, because the president is telling you it's OK," Zelin said, describing the argument. "'I had no knowledge that I was breaking the law because I was told by the president of the United States to go ahead and do it.'"
Harry Litman, a former U.S. Attorney, said that legally, blaming Mr. Trump would be difficult, but practically, it makes sense.
"The 'Trump made me do it' defense is a real long-shot, legally," he said, but he added the move could still be smart because it may create sympathy with jurors, and may even require Mr. Trump to be subpoenaed — a major logistical obstacle that could slow down a case and force prosecutors to drop to lesser charges.
While attorneys for seven accused rioters have invoked Mr. Trump, filings written by federal prosecutors have referenced the former president nearly three times as often. The government's charging documents and memos arguing to detain defendants before trial have suggested Mr. Trump inspired at least 20 of the accused rioters.
"Her concern about taking action without his backing was evident in a November 9, 2020, text in which she stated, 'I am concerned this is an elaborate trap. Unless the POTUS himself activates us, it's not legit. The POTUS has the right to activate units too. If Trump asks me to come, I will. Otherwise, I can't trust it.'"
In moving to detain Timothy Hale-Cusanelli, who prosecutors called a "Nazi sympathizer," the government wrote that he told FBI agents he believed there was a strong chance Mr. Trump would join them at the U.S. Capitol after his rally.
"I think that what they're trying to show is that these people remain dangerous, simply because they're willing to engage in violent conduct on the perceived instructions of the president of the United States," said Adam S. Fels, a former federal prosecutor and founding partner of Fridman Fels & Soto, PLLC, who is not involved in any of the Capitol riot cases.
At least one defendant has tried to distance himself from the former president while arguing that he can safely be released from jail. In a memo, the attorney for Christopher Ray Grider said of his client, "He no longer cares about politics or who is President of the United States."
In charging documents, prosecutors also cited defendants' pro-Trump social media posts while attempting to prove defendants were in fact at the Capitol that day.
In prosecutors' complaint against Derrick Evans, a former West Virginia state lawmaker, they note that he posted a screenshot of a Tweet by Mr. Trump with the caption: "This is why we are going to DC. #StopTheSteal."
In documents charging Kenneth Grayson, prosecutors cite a social media post in which Grayson wrote: "I'm there for the greatest celebration of all time after Pence leads the Senate flip!! OR IM THERE IF TRUMP TELLS US TO STORM THE F***N CAPITAL IMA DO THAT THEN!"
Although Mr. Trump avoided conviction in his impeachment trial, Senate Minority Leader Mitch McConnell said he voted to acquit based on what he saw as a constitutional limitation of impeachment, not because he didn't blame Mr. Trump for the riot.
McConnell said in a floor speech Saturday, "There is no question, none, that President Trump is practically and morally responsible for provoking the events of the day."