A federal court should prohibit Arkansas resident Nathan Earl Hughes and his co-defendant from arguing that then-President Donald Trump “or other officials” gave them permission to attack the nation’s Capitol on Jan. 6, 2021, prosecutors said in a newly filed court document.
Such arguments “are commonly known as ‘entrapment-by-estoppel’ or ‘public authority’ defenses,” the prosecutors wrote in a motion filed Friday in U.S. District Court in Washington, D.C., in the cases of Hughes, a Bentonville resident, and fellow defendant Jay James Johnston. Johnston is a Los Angeles actor whose TV credits include “Bob’s Burgers,” “Arrested Development,” and “Better Call Saul,” according to CBS News.
“The defendants have not, and cannot, argue that, in urging his supporters towards the Capitol, then-President Trump made a ‘statement’ of law,” prosecutors wrote. “By now, several courts in this district have considered various defendants’ arguments that the President’s words immunized their actions on January 6. To the government’s knowledge, all these arguments have failed.”
Citing another federal judge’s decision in a similar case, prosecutors said “‘former President Trump’s statements did not in any way address the legality of the actions he urged his supporters to take. He did not, for example, assure them that marching along Pennsylvania [Avenue] was ‘lawful’ or that occupying Capitol grounds was ‘permissible.’”
Prosecutors added: “Yet, even if then-President Trump had made a statement about the law, allowing those statements to immunize the defendants’ conduct would raise serious constitutional concerns.”
“As [another judge] observed about another entrapment-by-estoppel defense by a similarly situated defendant, ‘No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law,’” the prosecutors wrote.
Prosecutors also rejected the idea that the defendants were merely exercising their rights under the First Amendment.
“The First Amendment to the United States Constitution protects many sacred rights, but the right to engage in violence is not among them,” the prosecution wrote.
While fairly long, the court filing makes for an interesting read. Here’s the full document.
Hughes, 34, and Johnston, 56, are scheduled for a jury trial July 15 in Washington, D.C. Hughes, who wasn’t arrested until August, remains free on his own recognizance.
Hughes is charged with two felonies — assaulting a law enforcement officer and obstructing, impeding or interfering with a law enforcement officer during commission of a civil disorder. He also is charged with three misdemeanor offenses: entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; and impeding passage through the Capitol grounds or buildings.
Prosecutors also argued that defense attorneys not be allowed to ask witnesses about the exact location of Capitol police surveillance cameras, introduce such evidence or admit Capitol police maps of camera coverage.
“Evidence about the exact locations of cameras, and the maps used to locate the cameras, should be excluded in light of the ongoing security needs of the Capitol,” prosecutors wrote. “The defense can probe what Capitol Police’s cameras show, and what they don’t, by asking about the general location of each camera.”
The Daily Beast reported in 2021 that Johnston was banned from his job voicing the character Jimmy Pesto Sr. on the animated TV comedy “Bob’s Burgers” in December 2021, after he participated in the Capitol riots on Jan. 6.
The Jan. 6 riots followed a Trump speech and rally near the Capitol and were in protest of Joe Biden’s victory over Trump in the November 2020 election. Trump is the presumptive Republican presidential nominee this year as Biden seeks a second term. He’s also now a convicted felon himself.