How Trump's 2nd impeachment trial could help Capitol rioters' legal defense in their criminal cases

• Trump's impeachment trial may benefit people criminally charged in connection with the Capitol riot.
• Many are invoking the "public authority defense," saying they stormed the Capitol on Trump's orders.
• The more evidence Congress throws at Trump, the more rioters can try to shift blame from themselves.

This week, Donald Trump stands trial for his second impeachment. According to the House of Representatives' charges, the former president incited an insurrection by telling a crowd to "fight like hell" before a mob of his supporters stormed the Capitol building.

Criminal defense lawyers representing members of that very mob may be watching with rapt attention.

"If I'm a defendant's lawyer, I want to sit back and watch the impeachment proceedings unfold," Randy Zelin, an adjunct professor at Cornell Law School and criminal defense attorney at Wilk Auslander LLP, told Insider. "Because that's going to be the best evidence that I could possibly muster for a motion to dismiss my client's case."

While the participants in the Capitol riot won't be showing up for trial in Congress this week - even though the "QAnon Shaman" has offered to stand as a witness against Trump - what happens in Trump's second impeachment trial may have consequences for their own cases, criminal law experts say.

The evidence that House impeachment managers bring for their case against Trump, Zelin said, may also be used by the rioters' defense attorneys in court. Trump told his supporters that they would walk up to the Capitol building and "fight like hell." The lawyers representing those doing the fighting may argue they were simply acting at Trump's command.

"If you are encouraging someone who is charged with doing it, then your defense is, 'The president told me to do it. And here's the proof: Go take a look at the evidence in the impeachment proceedings,'" Zelin said.

Rioters are already blaming Trump

Many of the participants in the insurrection have already used this excuse in some form, as Insider's Sonam Sheth previously reported.

More than 230 people have been criminally charged in connection with the insurrection so far. And as attorneys argue for pretrial release - letting their clients stay out of jail ahead of the criminal trial - they're piling much of the blame on Trump himself.

Jenna Ryan, the Texas realtor famous for flying to Washington, DC, on a private jet, said she "went and answered the call of my president." Lori Ulrich, the attorney representing Riley Williams, who was accused of taking a laptop belonging to House Speaker Nancy Pelosi, said she "took the president's bait." An attorney for Matthew Miller, who prosecutors said discharged a fire extinguisher at Capitol Police, said he was "merely following the directions of then-President Trump."

Even Al Watkins, the attorney representing "QAnon Shaman" Jacob Chansley, said his client acted upon "months of lies and misrepresentations and horrific innuendo and hyperbolic speech by our president designed to inflame, enrage, motivate."

"Our president, as a matter of public record, invited these individuals, as president, to walk down to the Capitol with him," Watkins told a local NBC News affiliate, adding that Chansley "regrets very very much having not just been duped by the president, but ... allowed that duping to put him in a position to make decisions he should not have made."

Read more: Trump is plotting a campaign revenge tour targeting GOP defectors after Senate impeachment trial

These defendants are making what's called the "public authority defense," according to Dr. Ziv Cohen, a criminal forensic psychiatrist whose studies focus on extremism.

It's typically invoked in criminal cases that involve law enforcement collaborators, Cohen said - "the FBI wanted me to sell this gram of cocaine as part of an operation" - but if insurrectionists say Trump incited the insurrection, then it could show up in their criminal cases as well.

But just because the impeachment managers use something in an impeachment trial doesn't mean the same rhetoric or evidence can be admissible in a criminal court. Judges will typically only admit evidence that has a direct connection to the immediate case, according to Joseph Low, the head trial attorney at Arash Law. But judges will likely try to keep out any politically charged rhetoric from the trial.

"In an impeachment hearing, you know, it's pretty loose as to what can be used as evidence. It's not the same standard as what can be used in court criminal court," Low said, adding: "You can say a lot of inflammatory argument, innuendo, and insinuation in an impeachment proceeding that will never be admitted in a criminal court."

Judges - as well as prosecutors and defense attorneys - may also seek to insulate court proceedings from the impeachment trial altogether, according to Chicago-based defense attorney Donna Rotunno.

"We're going to hear a lot of banter in the court of public opinion - about what they think, and why they think people did it - but when it comes to actually walking in the courtroom, I just don't see how that stuff's really relevant to the plaintiff, or to the defense, or to the decision-making," Rotunno said.

Just following orders

Typically, Cohen said, the public authority defense depends on specific instructions.

Trump, at his rally ahead of the January 6 riot, was fairly vague. While he lied about the presidential election results and told his supporters to "fight" to save the country, he didn't specifically tell them to smash the windows of the Capitol building, drive the Senate out of its chambers, and steal Pelosi's laptop.

But if Trump can be convicted of either impeachment or criminal charges - however unlikely that may be - it could, ironically, bode well for insurrectionists. Their attorneys may have more success arguing they were acting at the command of a public authority.

"If Trump were convicted in an impeachment, then that gives more credence to a public authority defense," Cohen said. "And if he was criminally convicted, it would also give it more credence."

Just because a lawyer might raise that defense, though, doesn't mean it will necessarily work. Jurors may be hostile to Trump, Cohen said, and may find the accused insurrectionists' professed loyalty to him only more damning.

But for some rioters, it may be the only defense they have, according to Neama Rahmani, a former federal prosecutor and the founder of West Coast Trial Lawyers.

"It's really your only defense in the case. I mean, when you're posting on Facebook, live streaming, you entering the Capitol building, you can't say you didn't intend to commit a crime, intend to enter the building, you can't say 'it wasn't me, I didn't intend to do this,'" Rahmani told Insider.

Although it may not succeed.

"I think that would be a very, very difficult position to lay your entire defense on. It's kind of the same notion as, 'my friend told me to jump off the bridge, so I did,'" Rotunno said. "I mean, you know who's really at fault there."

Aside from the trial itself, there could be other benefits in raising the public authority defense, Cohen said. If a criminal forensic psychiatrist could help establish that a rioter was acting on Trump's instructions, that could complicate the case for a prosecutor and make them more willing to drop a charge or accept a plea deal for lesser charges. It could also lead a judge to hand out a more relaxed sentence than they otherwise would, understanding the rioter's actions were an aberration from how they normally act.

That defense is unlikely to work, though, for some of the right-wing militia groups that had participated in the attack, Cohen said. For groups like the Proud Boys, Oath Keepers, and Three Percenters - which prosecutors say all coordinated their actions in advance - it'll be harder to say they were just swept up in the excitement.

"When you find evidence of planning or conspiracy, that completely undermines the public authority [or] crowd psychology defense, and it would largely undermine any mental health defense," Cohen said. "When the evidence points at planning and carrying out a conspiracy, that makes you appear to be acting rationally and having agency and having control, and having an intent to break the law."

This article has been updated.

Expanded Coverage Module: capitol-siege-module