Ever since he was indicted on charges of interfering in the 2020 election results, Donald Trump has relished the chance to use the case in Washington as a venue to air his baseless claims of fraud. Now he is using it to circulate a new set of falsehoods: that the federal government staged or incited violence at the Capitol on Jan. 6, 2021, to discredit Trump and his supporters.
In court filings last week, the former president revealed that he has been pressing the Justice Department for information on far-right claims often elevated in his speeches, on his social media feeds and by his conservative allies in Congress — further blurring the line between his campaign and his court battles.
Trump’s legal filings typically include a political dimension, as the core of his defense is seeking to position the prosecutions as politicized, advisers said. He has frequently claimed in campaign speeches, without evidence, that President Biden ordered Trump’s arrest to damage his candidacy, and his lawyers have likewise claimed in court that he is fighting “tyranny” and “oppression” by the Biden administration.
“One of the great things about these trials, if the judge allows us … we want to show how we won the election,” Trump said Saturday at a speech in Iowa.
Now Trump is also suggesting that the government is withholding information on people known as “Fence Cutter Bulwark” and “Scaffold Commander” — nicknames given by conspiracy theorists to people they claim are government agents who instigated the Jan. 6 riot. Trump asked for “all documents regarding” Ray Epps, a supporter of the former president who has been falsely accused of being an undercover operative, and John Nichols, a liberal journalist in Wisconsin whom right-wing media has suggested encouraged violence at the Capitol on behalf of the “deep state.” He also asked for any intelligence the government had on “Antifa,” on pipe bombs found near the Capitol on Jan. 6, and on “informants, cooperators [and] undercover agents … involved in the assistance, planning, or encouragement” of the events of that day.
These are all references common on right-wing social media, including Trump’s “Truth Social” feed, and among his most conservative supporters in Congress. But they are far outside even many Trump supporters’ view of the Capitol attack and have been repeatedly rejected in federal court by the judges overseeing hundreds of Jan. 6-related cases.
“There’s nothing that suggests any of those debunked theories had anything to do with the causation of Jan. 6,” said Timothy Heaphy, a former prosecutor who led investigative efforts for the House Jan. 6 committee. “What he and his lawyers have put forth is more of a public relations strategy than a legal one.”
The Trump campaign did not immediately respond to requests for comment.
Finding gaps or unanswered questions in the prosecution’s case is the defense’s job, and attorneys often make sweeping requests in hopes of turning up something that might sway jurors. Asking for tons of material can also help delay a case — a key goal for Trump, who would like to push his trials past the 2024 presidential election.
But the Jan. 6 cases are unique in that scores of lawyers have already been given access to tens of thousands of hours of video, including of Epps and other supposed government plants.
“Between the hundreds of people who have looked through it, none of us have come up with the antifa provocateurs or the federal agent provocateurs that we keep hearing about,” said Greg Hunter, who has represented more than a dozen Jan. 6 participants, including one acquitted at trial. “It’s because they’re not there. There are a lot of people looking, and nobody’s found it.”
The demands are among about five dozen Trump claims the government is ignoring; prosecutors responded that they have turned over everything relevant to the trial.
“All of these requests — regarding the pipe bomb investigation, offers of immunity to January 6 defendants, ‘Antifa,’ sources, and various named and unnamed January 6 offenders — appear to be focused on others’ actions related to the January 6 attack on the Capitol,” the special counsel wrote late last month. “To the extent that we possess any such materials, we have produced them to you.”
Trump’s attorneys said in a court filing that, unlike rioters who claim that informants or undercover agents spurred them to commit crimes, the former president is “not seeking to establish that he was induced to engage in the charged conduct” by the government. Instead he wants to argue that the violence occurred because of law enforcement’s loss of control and “failed sting operations rather than any directions from President Trump.”
The appearance of false claims about Jan. 6 in legal briefs dovetails with Trump’s campaign rhetoric. His lawyers asked the government in a request made public Wednesday to “identify all Capitol Police Officers present at the Capitol on January 6, 2021.” The next day, Trump promoted a social media post saying “the cops should be charged and the protesters should be freed.” The attached video showed people fighting police to break into the Capitol building.
The filings also come as a Republican-led House committee begin making security footage from inside the building available to the public. Far-right lawmakers quickly began using the material to spread misinformation about law enforcement involvement in the riot, including by claiming that a vape pen held by one protester was a law enforcement badge.
Several of the people Trump noted in his request for information from prosecutors rebuked the former president’s insinuations that they were part of a government plot.
Trump asked for all documents related to former Capitol Police chief Steven Sund’s statements that he “believed officials were aware of the January 6 U.S. Capitol insurrection before it happened and covered it up.” That is a reference to an unaired clip from a Fox News interview, posted on social media, in which Sund expressed frustration that he had not had access to all the intelligence indicating that violence was likely and was not able to get the National Guard to the Capitol for several hours.
“Everything appears to be a coverup,” Sund said in the clip, going on to say that maybe some officials “kind of wanted something to happen.”
In an interview, Sund clarified, saying that, given the depth of the failures to prepare for and respond to the Capitol attack, he understood why some people “went down the rabbit hole of these conspiracy theories.” But, he emphasized, “I am not a conspiracy theorist.”
Trump’s lawyers also asked for “all documents regarding Ray Epps, the ‘scaffold commander,’ John Nichols, or any similar persons who encouraged or participated in any illegal activities on January 6th.”
Epps has been repeatedly and baselessly accused of instigating violence at the Capitol on behalf of the U.S. government, a claim made popular by a former Trump speechwriter. The night before the riot, Epps told fellow Trump supporters that they might need to “peacefully” go into the Capitol the next day. Video from the riot shows that while he was at the front of the mob and helped the crowd push toward police, he also repeatedly tried to calm those around him and prevent violence. Epps pleaded guilty to disorderly conduct in September. He is suing Fox News for falsely labeling him a government plant, saying the smears forced him and his wife to leave their home and live out of an RV.
“If Mr. Trump wants to know about Ray Epps here it is: Ray Epps strong and vocally supported Mr. Trump and came to Washington D.C. on January 6 at Mr. Trump’s urging,” Epps’s civil attorney Michael Teter said in a text. “But as some of Mr. Trump’s supporters became violent and attacked law enforcement and the Capitol, Ray did what Mr. Trump would not: he sought to deescalate and restore peace and order. Perhaps Mr. Trump will finally learn a lesson from Ray and accept responsibility for his actions and stop peddling in debunked, overworn conspiracy theories.”
Nichols, whom Trump also asked about, is a longtime Wisconsin-based correspondent for the liberal Nation magazine who, some conspiracy theorists suggest, was the “Scaffold Commander” urging people to go into the Capitol from a platform set up for Biden’s inauguration.
Nichols said that he had noticed a few tweets about a year ago suggesting he was part of the Capitol mob but that it has not come up since then. He was surprised to hear that the former president’s attorneys had picked up on it.
“I was not at the Capitol,” he added. “I was in Madison.” He watched the riot on television and wrote updates for the Nation website, including a column titled “Impeach Trump Immediately.” The photos of “Scaffold Commander” did “look like a younger me,” he said, but “for better or worse we do age a bit.”
Trump’s attorneys also asked prosecutors for any information they had on “the individual dubbed ‘fence cutter bulwark’ who was captured on video removing fencing in advance of the crowd moving from the Ellipse toward the Capitol.” Right-wing websites have suggested without evidence that this person is a federal agent who was tricking Trump supporters into trespassing on the Capitol grounds. However, a man identifying himself as the person in the video has given interviews saying he was just a bystander who thought the fencing was a safety hazard.
Judges have allowed people charged with taking part in the Jan. 6 attack to defend themselves in court with claims that the federal government staged or incited the violence, but those arguments have not been persuasive. At a bench trial earlier this year, California yoga instructor and former police chief Alan Hostetter thanked Judge Royce A. Lamberth for letting him claim that the riot was part of a corrupt plot between Democrats and Republicans. Lamberth found Hostetter guilty of four felonies; he is being sentenced Thursday.
“Citizens can make up their minds on politics or other bases,” the judge said. “Courts have got to have evidence.”
Spencer S. Hsu contributed to this report.
