House impeachment managers, Capitol riot defense lawyers, federal prosecutors agree Trump is culpable

The House impeachment managers in former President Donald Trump's imminent Senate trial, federal prosecutors charging more than 185 people who participated in the Jan. 6 siege of the U.S. Capitol, and lawyers defending those suspects appear to agree that Trump bears singular responsibility for instigating the assault. If 17 Republican senators agree and vote to convict Trump of "incitement of insurrection," the former president will stand convicted and likely be barred from holding federal office again. The trial starts this week.

Trump's lawyers have indicated that they plan to argue he merely "exercised his First Amendment right under the Constitution to express his belief that the election results were suspect" — an argument 144 leading First Amendment and constitutional scholars from across the political spectrum called "legally frivolous" — did not tell his supporters to violently attack the Capitol in a fiery speech right before the assault, and cannot be impeached since he is no longer in office. That last argument is popular among Senate Republicans, but top conservative constitutional lawyer Charles Cooper urged them in a new Wall Street Journal op-ed to disregard that flawed, illogical view and "judge the former president's misconduct on the merits."

As far as the merits go, federal "court documents show that more than two dozen people charged in the attack specifically cited Trump and his calls to gather that day in describing on social media or in conversations with others why they decided to take action by coming to Washington," The Washington Post reports. "Some defense attorneys have echoed those arguments, saying that those who participated in the attack were doing so at the behest of Trump."

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"But for the president, they would not have walked down Pennsylvania Avenue," Al Watkins, defending "QAnon shaman" Jacob Chansley, told the Post. "They believed the president was going with them. They thought they were helping the president save our country." A.J. Kramer, chief of the Federal Public Defender's Office for Washington, said he expects numerous attorneys for Capitol rioters to argue that Trump "told them to march up Pennsylvania Avenue, and he'd be leading them, and he's the commander in chief of the military and the nation's top law enforcement officer."

You can read more about what Trump and the Capitol insurrectionists said before and during the assault, and preview likely legal arguments, at The Washington Post.