Prosecutors say the Capitol riot defendant cannot argue he was simply following Trump’s orders

A federal court should ban the Arkansas resident Nathan Earl Hughes and his co-defendant for claiming that then-President Donald Trump “or other officials” gave them permission to attack the Capitol on Jan. 6, 2021, prosecutors said in a newly filed court document.

Such arguments “are commonly known as the ‘entrapment by estoppel’ or ‘public authority’ defense,” prosecutors wrote in a motion filed Friday in U.S. District Court in Washington in the cases of Hughes, a Bentonville resident and co-defendant Jay James Johnston. According to CBS News, Johnston is a Los Angeles-based actor whose television credits include “Bob’s Burgers,” “Arrested Development” and “Better Call Saul.”

“Defendants have not argued, and cannot argue, that in urging his supporters to go to the Capitol, then-President Trump was making a legal ‘statement,’” prosecutors wrote. “To date, 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 of these arguments have failed.”

Citing a decision by another federal judge in a similar case, prosecutors said that “former President Trump’s statements made no reference to the legality of the actions he urged his supporters to take. For example, he did not assure them that marching along Pennsylvania Avenue was “lawful” or that occupying the Capitol grounds was “acceptable.”

Prosecutors added: “However, even if then-President Trump had made statements about the law, allowing those statements to immunize defendants’ conduct would raise serious constitutional questions.”

“As (another judge) noted in connection with another defendant in a similar situation of imprisonment by estoppel: ‘No American president has the authority to impose sanctions on unlawful actions because to do so would be a farce of the rule of law,’” prosecutors wrote.

Prosecutors also rejected the notion that the defendants were merely exercising their First Amendment rights.

“The First Amendment to the United States Constitution protects many sacred rights, but the right to engage in violence is not among them,” the prosecutor’s office wrote.

Although the court proceedings are quite long, they make for interesting reading. Here is the full document.

Hughes, 34, and Johnston, 56, will appear in front of a jury on July 15 in Washington. Hughes, who was only arrested in August, remains free on his own recognizance.

Hughes is charged with two felonies – assaulting a law enforcement officer and obstructing, impeding or obstructing a law enforcement officer while committing a public nuisance. He is also charged with three offenses: entering or remaining in a prohibited building or area; disturbing the peace and order in a building or prohibited area; and obstructing passage through Capitol grounds or buildings.

Prosecutors also argued that defense attorneys could not ask witnesses about the exact location of Capitol police surveillance cameras, present such evidence or provide police maps of the Capitol’s camera coverage.

“Evidence regarding the precise locations of the cameras and the maps used to locate them should be excluded in light of the ongoing security needs of the Capitol,” prosecutors wrote. “The defense can see what the Capitol Police cameras show and what they don’t show by asking about the general location of each camera.”

In 2021, The Daily Beast reported that Johnston was banned from voicing Jimmy Pesto Sr. in the animated TV comedy “Bob’s Burgers” in December 2021 after he participated in the January 6 Capitol riot.

The Jan. 6 riot followed Trump’s speech and rally near the Capitol and was in protest of Joe Biden’s victory over Trump in the November 2020 election. Trump is the GOP’s presumptive presidential nominee this year as Biden seeks for a second term. He is now also a convicted felon himself.