The Capitol riot took center stage on the first day of Trump’s impeachment trial, when Democrats played a 13-minute video montage of the violence on January 6. House managers are expected to introduce additional footage on Wednesday, and the national attention on the rioters could set their attorneys up for a tough jury selection and a difficult defense.
“Many of the clips have never been seen before and present damning evidence against those charged in the riots,” Neama Rahmani, a former federal prosecutor, told Newsweek. “There is no more powerful evidence than video, and nothing their defense attorneys say can overcome these graphic images.”
More than 180 people have been charged on the federal level for their alleged role in the Capitol riot. Included in that group are some of the most well-known faces from January 6, such as the “QAnon Shaman,” who was photographed on the Senate dais; Richard Barnett, who was pictured sitting at Speaker Nancy Pelosi‘s desk; and Kevin Seefried; who was captured in photographs carrying a Confederate flag in the Capitol.
The U.S. Attorney’s Office for the District of Columbia is in charge of prosecuting the cases and has the option to use footage shown at Trump’s impeachment trial. But federal officials already have thousands of photos and videos, so they may not need to rely on the evidence presented in the Senate.
“Most of the evidence used against them will probably come from the pictures [rioters] took and the videos they posted,” Doug Husak, a distinguished professor of law at Rutgers University, told Newsweek. “This is an increasingly common phenomenon: People incriminate themselves through social media. This is not the brightest strategy in the world.”
Even if prosecutors don’t stake their case on the footage played at Trump’s impeachment trial, it could be detrimental to rioters’ defense. Americans watched the riot unfold on the news and have been consistently exposed to footage in the six weeks since. With the increased national spotlight on the event that Trump’s impeachment trial creates, it makes it even harder for jurors to be completely impartial.
“I think the impact is that in the public’s mind they’re going to be cast as insurrectionists,” Kendall Coffey, a former U.S. attorney, told Newsweek. “I think that’s potentially very damaging for the defense, who would want instead to get jurors to focus on the particular elements of the crime, as opposed to being painted with a broad and highly incriminating brush of being part of an insurrection.”
Clients’ right to a fair trial could be a “significant concern” for their defense lawyers, but getting a case transferred in the internet age isn’t easy. Moving a venue in a previous era could help yield a more impartial pool of jurors, but the reality of the Capitol riot case is that “everyone in America” has seen the same footage as potential jurors in Washington, D.C. So a judge may not be inclined to issue a venue change.
Even Trump’s attorneys agreed that the House managers made a compelling case during their opening statements when they used a lengthy video to show police officers being injured, property being destroyed and the fatal shooting of Ashli Babbitt. Building on that case with new videos that focus on the “sheer extent of the violence” could sway the sympathies of potential jurors who “would otherwise be agreeable to the ‘stop the steal’ argument,” according to Rahmani.
Jake Angeli, also known as the “QAnon Shaman,” offered to speak at Trump’s impeachment trial to explain how the president incited him to invade the Capitol. It’s unclear if the Senate will have any witnesses, but Angeli is one of the most well-known faces from the riot and could appear in unseen videos. And that might not work in his favor when it comes time for his trial.
“I think that those defendants who are highlighted in the impeachment trial will be highlighted in terms of prosecution attention,” Coffey said. “The more visible the defendant is, I think the more emphasis there is going to be on a firm prosecution. I don’t believe that the individuals who seem to be central members of the cast are going to get off lightly.”