Why Trump's testimony would likely 'do far more harm than good' for the Proud Boys: ex-federal prosecutor

22 February 2023

Attorneys for five members of the violent, far-right Proud Boys are hoping to subpoena former President Donald Trump as a witness in their federal sedition trials. All five of them, including Proud Boys leader Enrique Tarrio, are facing federal charges of seditious conspiracy in connection with the January 6, 2021 attack on the U.S. Capitol Building.

Tarrio himself wasn’t physically present in Washington, D.C. that day, but prosecutors are trying to convince jurors that Tarrio helped coordinate a plan to keep Trump in the White House and prevent Congress from certifying Joe Biden’s Electoral College victory in the 2020 election.

The Proud Boys’ attorneys seem to believe that testimony from Trump would improve their chances of getting acquittals. But Glenn Kirschner, a former federal prosecutor who is now a legal analyst for NBC News and MSNBC, believes that testimony from Trump would probably hurt the Proud Boys’ case.

In an op-ed published by MSNBC’s website on February 21, Kirschner explains, "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 January 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."

Kirschner notes that U.S. District Judge Timothy Kelly remains undecided about whether or not he will "approve the subpoena for Trump." But even if Kelly does approve the subpoena, the former federal prosecutor argues, Trump and his lawyers could fight the subpoena using 5th Amendment arguments.

"Trump is the target of a criminal investigation being conducted by special counsel Jack Smith," Kirschner observes. "Smith was appointed by Attorney General Merrick Garland on November 18, 2022 to investigate 'whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021'…. Given Trump’s potential criminal exposure in Smith’s investigation, the ex-president inarguably has a 5th Amendment right against self-incrimination."

According to Kirschner, the Proud Boys' attorneys have very little reason for optimism where Trump is concerned.

First, Kelly may not grant the subpoena request. Second, Trump and his legal team could resist that subpoena on 5th Amendment grounds. And third, according to the former federal prosecutor, testimony from Trump would probably hurt the Proud Boys if, by some chance, he does end up testifying at their trial.

"If the defendants hope their inspirational leader will save them," Kirschner argues in his op-ed, "they will likely be disappointed."

Read Glenn Kirschner’s full op-ed at this link.

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