The attorneys for the Proud Boys and Oath Keepers and other insurrectionists facing federal charges for their roles in the Jan. 6 attack on the U.S. Capitol have their work cut out for them, especially considering how their clients handed federal prosecutors all the evidence they needed, both on the day of the siege and on social media before and afterward. So it’s not a surprise that different lawyers for different clients are turning to wildly different strategies.
Some of them have turned to blaming Donald Trump—and pushing that strategy to the edge, like Jacob “QAnon Shaman” Chansley’s lawyer, who this week opined that his client and cohorts were “fucking short-bus people” who “have brain damage,” and were “subjected to four-plus years of goddamn propaganda the likes of which the world has not seen since fucking Hitler.” The attorneys who are working toward more direct defenses, such as arguing that their clients were simply following along and caused little damage, want nothing to do with such talk and are pushing to have their cases separated from the others.
Albert Watkins, the attorney for Chansley and two others charged in the insurrection, told Talking Points Memo in an interview that his client has Asperger’s syndrome, and the defense he intended to mount would involve Chansley’s mental state and how Trump’s Big Lie about the election affected it.
“A lot of these defendants—and I’m going to use this colloquial term, perhaps disrespectfully—but they’re all fucking short-bus people,” Watkins told TPM. “These are people with brain damage, they’re fucking retarded, they’re on the goddamn spectrum.”
“But they’re our brothers, our sisters, our neighbors, our coworkers—they’re part of our country. These aren’t bad people, they don’t have prior criminal history. Fuck, they were subjected to four-plus years of goddamn propaganda the likes of which the world has not seen since fucking Hitler.”
The attorney for a Kansas City man, Christopher Kuene, who was indicted along with two of Watkins’ other clients, filed a request for separation from their case. Marina Medvin, who represents Kuehne, a 47-year-old former Marine scout sniper, cited Watkins’ “highly inappropriate and prejudicial statements,” saying his “trial rights are prejudiced by the joinder of his case with codefendants” represented by Watkins, whose remarks are “as shockingly inculpatory as they are irredeemably insulting.”
“In this case, a joint trial with co-defendants represented by an attorney who publicly referred to Mr. Kuehne and others arrested for their participation in the January 6 incident as ‘fucking short-bus,’ ‘fucking retarded,’ and ‘on the goddamn spectrum,’ poses a serious risk of compromising Mr. Kuehne’s constitutional right to a fair trial by an impartial jury. Unlike his co-defendants, Mr. Kuehne’s defense strategy does not include self-degradation, nor an insanity plea,” her filing this week read.
Watkins fired back by explaining his strategy: “There is a reason and purpose behind my less than politically correct description of many who participated in the visit to the Capitol on January 6,” Watkins said in an email to Law&Crime. “My long standing pleas for compassion and understanding of those involved in the events of January 6 with mental health issues and disabilities have to date fallen on deaf ears. One charged, insensitive, and vulgar statement and the needed attention is given. We live in a sound bite world. I respectfully suggest the next few days and weeks will demonstrate the prudence of this calibrated move.”
In a CNN interview, Watkins insisted that Chansley has special needs, and that by placing him in solitary confinement, the government is “running a gulag.”
The strategy to blame Trump—or, in the case of one defendant who claims he succumbed to “Foxitis,” blame right-wing media propagandists—for the insurrectionists’ actions is not a terribly persuasive one, legal experts told TPM.
“It doesn’t matter if they were answering his call in terms of their own guilt or innocence,” said Harry Litman, a former U.S. attorney and deputy assistant attorney general, referring to Trump. “The law doesn’t recognize it as an excuse. Whatever brought them there, whatever they were spurred on to do, social media postings or whatever, they’re equally guilty under the federal statutes.”
The federal judge overseeing Chansley’s trial, Royce Lamberth, has earlier ruled along similar lines. “Even taking defendant’s claim at face value, it does not persuade the Court that defendant would not pose a danger to others if released,” Lamberth wrote. “If defendant truly believes that the only reason he participated in an assault on the U.S. Capitol was to comply with President Trump’s orders, this shows defendant’s inability (or refusal) to exercise his independent judgment and conform his behavior to the law.”
Medvin plans a more straightforward approach: “Unlike his co-defendants, Mr. Kuehne is not willing to throw in the towel, nor to throw an entire political party under the bus through cheap ‘Nazi’ comparisons,” her motion said.