Judge Reggie Walton Ruled Trump’s Back-Room Maneuverings Inadmissible for Dustin Thompson’s Alleged Obstruction

Last week, I showed that most commentators are looking in the wrong place — in the backroom plots to overturn the election — for evidence of Trump’s role in January 6. All the scheming at the Willard only matters, I argued, because it brought bodies to occupy the Capitol and threaten Pence. You find the evidence of Trump’s influence on the rioters in the words and deeds of the rioters.

That argument is backed by an order Judge Reggie Walton issued a few weeks ago in the case of Dustin Thompson, who is set to go on trial for misdemeanor theft and trespass and felony obstruction charges on April 11.  His trial will be among the first for a January 6 defendant accused of obstruction who did not, also, engage in or threaten cops. His prosecution is symbolically important because he filmed himself helping to ransack the Parliamentarian’s office, from which he stole a coat rack.

Because of his symbolic attack on the operation of the vote count, Thompson’s trial will be an important test of DOJ’s theory of obstruction.

For months, Thompson has been trying to get permission to call Trump and Rudy Giuliani to claim that he believed he was acting on orders from the President to occupy the Capitol and therefore did not have the corrupt intent to be guilty of felony obstruction.

Walton will permit Thompson to show the speeches of Rudy and Trump, but he rejected the defendant’s bid to call them as witnesses. He did so partly because of the circus doing so would cause (the legal term is “a trial within a trial” or “mini-trial”). But he also did so because Thompson would have had no knowledge of anything that happened behind the scenes. If he was genuinely influenced by what Trump said that day, it would have been exclusively through his speech and later Tweets. The best available evidence about what Trump said that — Thompson claims — led him to storm the Capitol would thus be the recorded speeches, not whatever Trump would say on the stand.

ORDERED that the testimony of the putative witnesses referred to in the Defendant’s Motion to Appoint U.S. Marshals Service as Process Server (“the defendant’s process server motion”), ECF No. 44, is inadmissible in support of either of the first two versions of the public authority defense as described by the defendant in his Brief in Support of Testimony of Donald J. Trump, et al., ECF No. 53. It is further

ORDERED that the actual statements of the putative witnesses referred to in the defendant’s process server motion are admissible (1) to the extent that the defendant can establish that he heard them prior to the acts that he is alleged to have committed and (2) for the sole purpose of attempting to show that he did not have the requisite intent to commit the crimes he has been charged with committing. It is further

ORDERED that the in-person testimony of the putative witnesses is inadmissible under Federal Rule of Evidence 403 because the probative value of such testimony is substantially outweighed by the danger of confusing the issues and misleading the jury. The only relevant testimony by the speakers would be the actual statements heard by the defendant prior to the acts that he is alleged to have committed. Testimony about an orchestrated or behind-the-scenes effort to cause former President Trump’s supporters to commit the acts that occurred at the United States Capitol on January 6, 2021, as alleged by defense counsel, is irrelevant as it has no relevance to the public statements that the defendant actually heard. Moreover, the probative value of the proposed in-court testimony about such public statements is lacking, given the duration of time since these statements were made and the improbability that the witnesses will be able to precisely mimic the text, tone, demeanor, and mannerisms originally used when the statements were made, all of which are necessarily relevant to the statements’ impact on the defendant’s intent. Accordingly, in light of the irrelevance of the alleged desire on the part of the speakers to incite the defendant to commit the crimes charged in this case and the substantial potential that their testimony will mislead and confuse the jury, it is therefore inadmissible under Rule 403. Furthermore, the recordings of what the defendant heard at the time the statements were made is the best evidence of the impact that the statements allegedly had on the defendant’s intent. For this reason also, the in-court testimony of the speakers is inadmissible. 2

2 It is inconceivable that any of the speakers will testify that they intended for the people they were addressing to commit the acts that the defendant is accused of committing, in no small part because doing so could result in criminal charges being lodged against them. Thus, it is highly likely that they would either assert their Fifth Amendment privilege not to incriminate themselves or deny that they intended to incite the crowd to commit the acts that occurred at the Capitol on January 6, 2021. However, even if the speakers were to so testify, such testimony would open the door for the government to cross-examine the speakers about their intent in making the alleged statements. This would inevitably lead to a mini-trial on the issue of the intent of the speakers in making their statements, which, as the Court concludes above, is utterly irrelevant to the impact of the statements on the defendant’s intent. This reality is further reason not to permit the speakers to testify at the defendant’s trial.

Thompson is going to have a hard time blaming Trump’s speech in any case. As Thompson’s co-defendant Robert Lyon admitted in his statement of offense when he pled guilty last month, he and Thompson weren’t paying close attention to Trump’s speech.

During the January 6, 2021 speech given by former President Trump, Thompson and Lyon twice went to get food from nearby food trucks. Thompson was also on his phone on various occasions during the speech.

Thompson also sent texts before he arrived in DC, including multiple ones pertaining to the Stop the Steal rally and others talking about arming himself, evincing his plans before the rally.

Those are the texts Judge Walton permitted the government to admit at trial.

Thompson will presumably still try to make his trial about Trump. But Judge Walton laid down an important principle — one that stems from the real influences on most (but by no means all) rioters — that Trump’s role in their obstruction stems from what is public.

28 replies
  1. Zirc says:

    The logic that Judge Walton makes sense to my un-legally-tutored mind. However, something else you write I find interesting:

    ” If he [Thompson] was genuinely influenced by what Trump said that day, it would have been exclusively through his speech and later Tweets.”

    I suspect that in the manner of any mob boss Trump kept himself at a remove and did not give an actual “go” order. However, if he was involved in the planning (something we don’t know) could any direction he gave to ringleaders/organizers/inciters of the riot be thought of as an influence on those who were riled up in turn to invade the Capitol?


    • Rugger9 says:

      We may get more as the infamous gap is filled in via the various sources. It was a coincidence (I’m sure, snark) that the diarist was not around either in the days immediately preceding J6. I would think however that the recipient devices also were tracked / recorded somewhere.

      FWIW I think Judge Walton’s order would also have the effect of forcing out those recipient devices from the J6 rioters trying to save their own skin by blaming Individual-1. Walton’s demanding the proof, not innuendo.

      • civil says:

        I haven’t seen any reporting that the diarist (a National Archives employee) was not around in the days immediately preceding J6, only that there was a drop-off in information passed along to the diarist from the sources (Oval Office staff, Secret Service, WH Switchboard, …) who normally provided the diarist with info from which to compile the Presidential Daily Diary. I just tried confirming what you’ve said, but didn’t find confirmation. If you’ve seen something that the diarist himself was not around, would you share it? Thanks.

        • bmaz says:

          Um, how about you not, without evidence, slime the independent “diarist” as opposed to questioning what was related and fed to him?

            • civil says:

              The Committee also subpoenaed several other people who may be able to fill in missing PDD info, including Nicholas Luna, TFG’s personal assistant, and Molly Michael, Special Assistant to the President and Oval Office Operations Coordinator (january6th.house.gov/news/press-releases/select-committee-subpoenas-former-officials-close-ties-former-president). Apparently, they questioned Luna on 3/21, not sure about Michael. I assume that they’re doing their best to fill in the missing data.

              • bmaz says:

                Jesus, trying to keep up and clearing your relentless large comments is a full time job I neither get paid for nor am interested in. For the next few hours, I will not deal with this. Enough.

          • civil says:

            bmaz, you seem to have misinterpreted my 4:14pm comment. I didn’t “slime” the diarist.

            Rugger9 said that “It was a coincidence (I’m sure, snark) that the diarist was not around either in the days immediately preceding J6,” and I noted in reply that I haven’t seen any reporting to that effect. Instead, the reporting I’ve read was that there was a drop-off in information passed along to the diarist from the sources who are supposed to help provide the info for the PDD. I’d linked to more reporting about that in another column, and questioned whether it was a coincidence that Trump’s executive assistant, Molly Michael, was gone for most of the day on J6, when she’s one of the people who is supposed to pass information to the diarist (https://www.emptywheel.net/2022/04/02/on-ginni-thomas-obstruction-exposure-and-clarences-former-clerk-carl-nichols/#comment-929542 ).

            • bmaz says:

              Whatever. I do not think I did, but it is hard to tell given the number of long comments you often, shall we say, interject. I honestly do not have time to deal with you and your often mealy mouth comments in the blink of an eye. So, if that is not sufficient, sorry.

              • Glen Dudek says:

                Sorry, bmaz, I agree with civil about this one. It is clear to me civil’s comment was the exact opposite of what you accused it of being. One of the things I appreciate about this site is the level of commentary, and at least in this case I think civil added light and not heat, and I appreciated the extra details civil provided, FWIW.

            • John Paul Jones says:

              Totally speculative theory here: If Trump’s personal assistant was gone for most of the day, maybe she was “assisting” precisely by being off-site, and allowing her phone, or heck, even a burner phone, to be used to facilitate communications between Trump and another party. And of course, that would work best if she was only with one other person. Jest blu-skying it here, so take it for what it’s worth.

            • Leoghann says:

              The information that’s out there about the diarist is conflicting. I, too, have read that she was gone most of that day, as was the executive assistant. But I’ve also read that the diarist was there, but wasn’t being fed any information.

              The piece that said she was gone was from several days ago, and I don’t remember where I read it. However, if I had judged the source reliable at the time, I would have tagged it, and I did not.

    • Scott Johnson says:

      Were a mafia wiseguy to try and drag the don in for his defense, alleging that “we all knew that he wanted Fredo dead”, but not alleging that said don (or any of the caporegimes) actually commanded that Fredo be taken fishing, I imagine a court would shut that down too, for the same reason.

      And of course, this is one reason prosecuting crime lords is hard; the smart ones are careful not to leave any discoverable evidence implicating themselves. (Here Trump is at a disadvantage, as all sorts of policies and procedures concerning the conduct of the POTUS make following Stringer Bell’s advice dang near impossible).

  2. Clare Evento says:

    The pace of investigation & prosecution is maddening slow & not conducive to a timely course correction. If this is the biggest federal investigation in U.S. history shouldn’t we have a method to match its size & importance?

    • bmaz says:

      If you actually read here, you would know that your statement is nonsense. The criminal justice system is NOT about addressing your personal political thoughts.

      • Leoghann says:

        As I’ve pointed out here, in the fairly complex Enron scandal, the fraud was pretty clear by 2000. The company went bankrupt in 2001. The first guilty pleas were in 2004, and the trials of the principles were in 2006.

    • earlofhuntingdon says:

      I think you’re confusing what you want from the political system with what you expect from the legal system.

    • Leoghann says:

      Clare Evento, if it were you who was being investigated or had already been arrested, would you really want to be tried in the court of public opinion? We in the US have had a method for over two centuries that matches the size and importance of the rights of our citizens.

  3. Yogarhythms says:

    “Dustin Thompson, who is set to go on trial for misdemeanor theft and trespass and felony obstruction charges on April 11. “ All JJones followers will tell you “ because he said I should”. Hitching your ride to a star is so dramatic. Now DT is going to meet his personal consequences because he wanted to FAAFO.

  4. Zinsky says:

    I think it will be interesting to see how Thompson is charged. Thanks for the heads up. He was clearly just a knucklehead who was there for the mayhem and the adolescent thrill of wrecking things and stealing trophies to brag to his buddies about. Speaking of knuckleheads, I see where Lonnie Coffman was sentenced last week to about four years in prison. Not having any familiarity with federal sentencing guidelines, this seems like a pretty light sentence for a guy who went to the trouble to create his own napalm by melting Styrofoam into gasoline, for Chrissakes! This sicko was going for either maximum arson value or maximum harm to human beings. I would be interested in anyone’s thoughts on the relative leniency of Coffman’s sentencing.

    • blueedredcounty says:

      It is a plea deal sentence, and it is at the upper end of the range.
      You can find a story here: https://news.yahoo.com/man-brought-almost-small-armory-024541298.html

      Some points in the article:
      1. He’s 72, and a Vietnam vet.
      2. He’s sentenced to 46 months in prison, plus three years of probation and mandatory mental health treatment.
      3. They found his truck (he’d been living out of it, apparently) parked inside a security zone established after they found the explosive devices outside the Republican and Democratic party HQs.
      4. “There is no evidence that Coffman illegally trespassed on Capitol grounds or breached the building.”

  5. Peterr says:

    From footnote 2, cited above: “It is inconceivable that . . .”

    I cannot read the word “inconceivable” in a sentence related to Trump without hearing Inigo Montoya in my head.

      • Peterr says:

        No, what I hear is Inigo’s *response* to Vizzini.

        “It is inconceivable that a presidential candidate would not release their tax returns.
        “It is inconceivable that a presidential candidate would drop out of the race after a tape like the Access Hollywood recording came out.
        “It is inconceivable that a president would accept the word of the Russian leader over that of his own various intelligence agencies about what Russia has/had been doing in the US.”

    • Leoghann says:

      And now I have Perry Como’s voice running through my mind, singing “It’s Impossible.”

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