Members of the Proud Boys organization, including chairman Henry “Enrique” Tarrio, are on trial on charges of, among other things, being involved in a seditious conspiracy designed to violently overthrow the government or forcibly resist the laws of the United States. And they have decided to call in their defense a most unlikely witness: former President Donald Trump. Why in the world do the defendants think it would be a good idea to put Mr. “Stand Back and Stand By” on the stand? Well, The New York Times reported that defense lawyers “are hoping to elicit testimony from Mr. Trump that could persuade the jury that he, rather than their clients, instigated the crowd that stormed the Capitol on Jan. 6.”
As a former career prosecutor, I believe that Trump would do far more harm than good to the Proud Boys’ prospects of an acquittal. If called as a witness, it is extremely unlikely Trump will say anything about encouraging an attack on the Capitol on Jan. 6. To the contrary, Trump might try to convince the jury that he never said or suggested the Proud Boys or anyone else should storm the Capitol, so the Proud Boys are wholly responsible for their decisions to do so.
Given recent history, it’s clear Trump is not afraid to invoke his Fifth Amendment rights.
Putting trial tactics aside, though, major constitutional impediments make it unlikely Trump will testify at the Proud Boys’ trial. To be sure, the Constitution guarantees every defendant in a criminal trial the right to compel the testimony of witnesses that the defendant believes can offer evidence helpful to their case. The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor . . .” The presiding judge, U.S. District Judge Timothy Kelly, has not yet decided whether he will approve the subpoena for Trump.
But assuming he does, it may turn out to be a hollow victory for the…
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