Trump and Giuliani prosecutions could create ‘headache’ for cases against Capitol rioters

The Department of Justice faces public and political pressure to investigate Donald Trump and his chief allies for their roles in the Jan. 6 insurrection, but hitting the former president with criminal charges could throw the cases against Capitol rioters into chaos.

Any decision to prosecute Trump is still probably several months away, at least, but DOJ charges against him or top allies such as Rudy Giuliani would create delays in cases against individuals who stormed the Capitol because their attorneys would almost certainly want evidence against the ex-president as part of the discovery process, reported Politico.

“If he does get indicted — Trump — that does seem better for all the other defendants,” said Nina Marino, of law firm Kaplan Marino in Los Angeles.

Defense attorneys could demand the mountain of evidence of Trump's actions around Jan. 6, 2021, to argue that his alleged incitement makes their clients less culpable, and there's already so much video, electronic and other evidence gathered about the Capitol riot that piling on that additional evidence could be even more costly and time-consuming.

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“It’s messy. It’s a headache. And it’s a huge undertaking,” said Pace University law professor Bennett Gershman, an expert on discovery practices.

“It seems to me if you’re going through the Trump stuff or [Rudy] Giuliani stuff [and you find something potentially useful to defendants] you’ve got to turn it over,” Gershman added. “They would have to turn over information to them that is colorably favorable or would be something a defense attorney would want to see.”

Gershman and some other legal experts suspect that DOJ may be letting the House select committee take the lead in investigating Trump to avoid complicating lower-level cases.

“I think it’s logical to make that assumption,” Gershman said. “Why would they be going out ahead of the committee when what the committee is doing is gravy for them? The committee is giving them huge information that they might not otherwise have discovered. There’d be no reason why they would want to run out ahead here.”