In a ruling on Wednesday in the case of one of the accused Capitol rioters, U.S. Judge Emmett Sullivan offered a provocative aside about former President Donald Trump's role in the attack.
Sullivan ruled that Jeffrey Sabol of Colorado is too dangerous and too much of a flight risk to be released prior to his trial. Sabol is accused of beating a cop during the Jan. 6 attack on the Capitol, which sought to prevent Congress from officially counting the Electoral College votes that made Joe Biden president.
The judge rejected the argument that Sabol was prompted to engage in the insurrection in the heat of the moment, spurred on by Trump's rally. Evidence suggests, instead, that Sabol engaged in "prior planning" ahead of the attack, Sullivan found, which distinguishes him from rioters who are not being held pre-trial.
"He brought tactical gear, including a helmet, steel-toe boots, zip ties, a radio and an ear piece," Sullivan said. "He later admitted to law enforcement that he had equipped himself with this gear because he anticipated encountering counter-protesters. ... He also maintained, even days after the riot when he believed he was wanted by the FBI, that he had been "fighting tyranny in the D.C. Capitol."
He continued: "The Court is ultimately unpersuaded by Mr. Sabol's argument that he did not plan to commit violence or disrupt the electoral process on January 6, 2021, but rather was caught up in the "frenzy" that was created in part by then-President Trump's, and his associates', words and actions."
Then, in a section of the ruling flagged by journalist Marcy Wheeler, Sullivan indicated he believes Trump and his allies may have significant legal exposure for their roles.
"To be sure, to what extent President Trump's words and actions led to the violent and shocking storming of the U.S. Capitol on January 6, 2021 is an important question, and one that could still have legal consequences for the former President and his prominent supporters," Sullivan wrote, citing a civil lawsuit against the former president. "But President Trump's culpability is not before this Court."
He continued, noting that Trump's own role in spurring the attack would not exonerate Sabol:
To the extent Mr. Sabol raises this issue to suggest he has a complete defense to the criminal charges he faces based on President Trump ostensibly or actually giving the rioters permission to use violence to interfere with the peaceful transition of power, that argument fails for the reasons clearly and thoughtfully articulated by Chief Judge Howell ... Indeed, "even if former President Trump in fact . . . 'told the assembled rabble what they must do' (i.e., attack the Capitol and disrupt the certification of the electoral vote count) and 'ratified their actions,' . . . he acted 'beyond [his] power' as President, . . . and his statements would not immunize defendants charged with offenses arising from the January 6 assault on the Capitol from criminal liability."
While the judge's remarks on their own don't have any legal significance for the former president, they're a useful reminder of a fact that is far too quickly being swept under the rug. The former president had a clear role in the most direct attack on American democracy in memory, and he has not yet been held legally responsible for it. Many others who believed his lies about the election, on the other hand, are suffering dearly. And while there's been significant attention paid to the ongoing investigations of Trump in New York and Georgia, his most egregious violations took place in the American capital.