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Capitol riot defendant: I'll call Trump to testify at trial

Dustin Thompson, of Ohio, says he plans to claim the former president gave him and other rioters permission to enter the U.S. Capitol Building on Jan. 6.

WASHINGTON — An Ohio man charged with obstruction for his role in the Capitol riot told a federal judge Friday he intends to call former President Donald Trump as a witness.

Dustin Thompson, 36, is under federal indictment on six counts with co-defendant Robert Lyon for entering the U.S. Capitol Building on Jan. 6. While inside, prosecutors say Thompson took a wooden coat rack as a “trophy.”

On Friday, in a motion titled “Brief in Support of Testimony of Donald J. Trump, Et Al,” Thompson’s attorney, Samuel H. Shamansky, informed the court they believe a jury should hear from the former president at Thompson’s trial date in April. According to Shamansky’s filing, Trump’s testimony will be part of a public authority defense arguing, in brief, the former president authorized Thompson and other rioters to enter the Capitol on Jan. 6.

“It is anticipated that, when called as a witness, Donald J. Trump will testify that he and others orchestrated a carefully crafted plot to call into question the integrity of the 2020 presidential election and the validity of President Biden’s victory,” Shamansky wrote. “Moreover, it will be established at trial that Mr. Trump and his conspirators engaged in a concerted effort to deceive the public, including Defendant, into believing that American democracy was at stake if Congress was permitted to certify the election results.”

Shamansky said other individuals within Trump’s orbit could be subpoenaed as well, including his attorney Rudy Giuliani who, as Shamansky noted, called for “trial by combat” just prior to the riot.

“Defendant submits that the testimony of Mr. Trump and his conspirators will establish that they were determined, by any means necessary, to prevent Congress from fulfilling its constitutional mandate to certify the election results,” he wrote. “In order to accomplish that goal, the conspirators Defendant now seeks to subpoena engaged in a concerted effort to organize, encourage, and direct rally participants to storm the Capitol, enter the grounds, ‘fight like hell,’ and ‘engage in trial by combat.’”

Other defendants in Capitol riot cases have blamed Trump for their presence at the Capitol on Jan. 6, but Thompson is the first to formally notify the court he intends to call him as a witness at trial.

Thompson’s defense strategy is likely to face an uphill battle, at best. As judges have noted in other Capitol riot cases, the president has no authority over the Capitol building and cannot, in any case, order anyone to commit a crime. According to former federal prosecutor Neama Rahmani, the judge isn't likely even to allow Thompson to call Trump at all.

"Trump’s testimony is not relevant because it’s not a defense to the charges. There is no legitimate public authority or government authority defense here," Rahmani told WUSA9. "And even if it were relevant, the former President’s statements are public and not in dispute, so the parties can enter into a stipulation as to what was said. Trump’s attorneys will fight any subpoena as harassing and not reasonably calculated to lead to relevant testimony.  And judges will likely agree."

Separate from Thompson’s case, Trump and Giuliani are among dozens of defendants now named in multiple civil suits brought by congressional Democrats and police officers who defended the Capitol on Jan. 6. In a hearing last month, attorneys for the plaintiffs argued Trump has no presidential immunity for “fomenting an insurrection.”

We're tracking all of the arrests, charges and investigations into the January 6 assault on the Capitol. Sign up for our Capitol Breach Newsletter here so that you never miss an update.    

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