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Trump, Giuliani are 'unindicted co-conspirators,' Capitol riot defendant argues

The attorney for Dustin Thompson indicated he plans to appeal a judge's decision to prevent him from calling Donald Trump and Rudy Giuliani as witnesses.

WASHINGTON — A federal judge on Wednesday shot down a Capitol riot defendant’s plan to call former President Donald Trump and his lawyer, Rudy Giuliani, as witnesses during his trial next month.

U.S. District Judge Reggie Walton said there was no basis for Dustin Thompson to raise an entrapment defense because Trump had no authority as president to order anyone to forcibly enter the Capitol on Jan. 6. He also said he didn’t see how Trump and Giuliani could testify about anything other than the exact words they said on Jan. 6, and though calling them as live witnesses would cause a “mini-trial” on numerous evidentiary issues.

“I don’t think we want individuals to feel they can listen to anybody and go out and commit a criminal act and say, well, I was told I could do it,” Walton said.

Thompson, who’s set to go on trial next month, is facing six counts in connection with the Jan. 6 assault on the Capitol, including theft of government property and felony obstruction of an official proceeding. His attorney, Samuel Shamansky, has been one of the most aggressive in pursuing Trump, Giuliani and other “Stop the Steal” speakers as potential witnesses. He's argued Trump saying supporters needed to "fight like hell," and Giuliani calling for "trial by combat," directly affected his client's decision to enter the U.S. Capitol Building.

“To prohibit us from calling witnesses who uttered the exact words my client heard – and in fact the whole country heard… with all due respect judge, my client has a right to call them into court and compel them to explain what they said,” Shamansky said

Walton said Shamansky was treating Thompson like he was a defendant in a conspiracy case. Shamansky said the judge was correct – and that Trump and Giuliani were unindicted co-conspirators.

“[Thompson] and thousands of others were encouraged by these unindicted co-conspirators to storm the Capitol,” Shamanksy said.

But, he failed to convince Walton, who denied his motion. Shamansky indicated he planned to appeal the decision to the D.C. Circuit Court.

“I don’t get reversed a lot,” Walton said. “If I get reversed on this, so be it.”

Thompson was scheduled to begin trial on April 11. His co-defendant, Robert Lyon, pleaded guilty to two misdemeanor counts last week and was expected to be called as a witness.

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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