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Undercover agents hidden among Trump supporters should have stopped the January 6 riots, Donald Trump's lawyers have claimed in court filings.
Trump wants information on all undercover agents acting within five miles of the Capitol on January 6, 2021, as part of a massive pre-trial disclosure request in his election interference criminal case.
In a disclosure request to Judge Tanya Chutkan in Washington, D.C., on Monday, Trump's lawyers wrote that they want information on undercover agents to show that it was the security forces, not Trump, who could have stopped the Capitol invasion on the day President Joe Biden's election victory was confirmed.
"President Trump is entitled to all information regarding undercover agents and individuals acting at the direction of official authorities at the Capitol on January 6," the lawyers wrote, citing United States v. Zink, in which Trump supporter, Ryan Zink, was found guilty in September of three charges, for filming and encouraging the rioters from within the Capitol building. In the Zink case, the court ruled that the defendant "is certainly right that the identity of a potential undercover actor—assuming any were present at the Capitol on January 6—could be exculpatory evidence that the Government must disclose."
In their submission on Monday, Trump's lawyers wrote that the former president differs from Zink in that he is not claiming that he was led into illegal actions by an undercover agent, but rather that the undercover agents should have controlled the riot.
The presence of undercover agents or informers would "suggest that there were adequate controls in place and that the violence at issue resulted from a failure of those controls and/or failed sting operations rather than any directions from President Trump," the lawyers' submission states.
"It strains credibility to assert that President Trump is not entitled to the production of this information, putting aside, for now, whether such information is admissible at trial, it certainly aids the preparation of President Trump's defense," the submission states, adding that the federal government "must also produce all materials that are inconsistent with the prosecution's new theory that President Trump 'directed' and is 'responsible for the events at the Capitol on January 6.'"
"This includes any materials suggesting that non-parties 'directed' events on January 6 or are otherwise 'responsible'—in whole or in part—for the violence that President Trump sought to prevent," the submission states.
On November 22, chief prosecutor Jack Smith filed a submission to strike out Trump's request for 57 groups of documents, many of them highly classified, on everything from Justice Department correspondence with Hunter Biden to Trump's White House scheduling diary and a list of undercover agents on January 6. Monday's filing was Trump's response to Smith.
In this latest filing, Trump's legal team has added Hezbollah to their list of foreign groups involved in attempts to interfere in the election.
Trump's team have already applied for documents on Russian, Iranian, Chinese, Cuban and Venezuelan meddling in the 2020 election. This latest filing seeks documentation in relation to attempted inference by Lebanese militant group, Hezbollah, which is closely linked to Iran.
The former president was indicted on four counts in Washington, D.C., for allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the Capitol. He has pleaded not guilty to the charges that include conspiracy to defraud the U.S. government and conspiracy to obstruct an official proceeding.
A smaller disclosure in Trump's classified documents hoarding case in Florida has already run to over a million pages and, if granted, the disclosure in the election case may run to several million pages.
The request could cause a major delay in Trump's election tampering trial as it has in his trial in Florida, where attorneys have to view the disclosed documents in special, secure rooms and use ultra-secure laptops.
Under the federal Classified Information Procedures Act, all of the security protocols in Florida will have to be replicated in Washington, D.C., if Trump is granted his disclosure request.
Newsweek sought email comment on Tuesday from Trump's attorney.
In Trump's other federal case, in which he is accused of hoarding classified documents at his Mar-a-Lago estate in Florida, Judge Aileen Cannon has said that she will have to set a new pretrial schedule because of the large number of documents being sought by the Trump defense team.
"I'm just having a hard time seeing how realistically this work can be accomplished in this compressed period of time, given the realities that we're facing," Cannon told lawyers at a hearing on November 1.
Jay Bratt, a Justice Department national security prosecutor, objected, and said Trump's continuing requests for postponements are part of an overarching strategy of delay in many of his legal proceedings.
"It's not surprising," Bratt told Cannon.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more