US attorney's office in Washington, DC
Standing next to a fellow police officer flashing the middle finger, Thomas Robertson posed for a photograph inside the Capitol on January 6, 2021, as hordes of Trump supporters stormed the building.
It was an image, Robertson later said on social media, of "2 men willing to actually put skin in the game and stand up for their rights."
"I am fucking PROUD of it," he wrote in an Instagram post shared to Facebook.
The photograph would soon feature prominently in court papers charging Robertson, then a police officer in Rocky Mount, Virginia, with participating in the January 6 attack on the Capitol. But as he stood trial on those charges Tuesday, his defense lawyer urged jurors to disregard Robertson's prideful social media posts.
"Let's be honest here: social media is not reality," Robertson's defense lawyer Camille Wagner said Tuesday, during opening arguments in the third trial related to the January 6 attack on the Capitol. In a reference to Instagram, Wagner suggested that Robertson's online bravado was merely a put-on "for the 'gram."
In the year since the Capitol attack, many of the more than 770 alleged participants have been dogged by their own social media posts, messages, and documentation of January 6.
Wagner's argument was reminiscent of a defense that Guy Reffitt raised in the first January 6-related trial: That his incendiary messages about the Capitol attack amounted to "hyperbole" that did not accurately reflect his conduct.
The jury in that trial found Reffitt, a member of the far-right Three Percenters group, guilty on all five charges he faced, including obstruction of an official proceeding. Reffitt's sentencing is set for June 8.
Wagner's argument stood in stark contrast Tuesday to the Justice Department's view of Robertson's social media posts.
In an opening argument, prosecutor Elizabeth Aloi highlighted Robertson's posts, including one that read: "A government scared of its people. The pictures of them huddled in the floor crying is the most American thing I have ever seen."
The FBI arrested Robertson in January 2021, a week after the Capitol attack, on charges of violent entry and trespassing on restricted grounds. Robertson now faces six charges, including disorderly conduct and obstruction of an official proceeding.
Roberston was also charged with destroying one or more cell phones to impair the criminal investigation into the January 6 insurrection.
Aloi showcased text messages in which Robertson appeared to brag about destroying his phone.
"Anything that may have been problematic is destroyed," he wrote in one text.
"Took a lake swim," Roberston said in another text, according to Aloi's presentation.
"They asked for my phone but I'm not a retard," Robertson wrote in another message.
The off-duty police officer who joined Robertson at the Capitol, Jacob Fracker, was also charged in the days after January 6. The Rocky Mount Police Department later fired the men.
In March, just weeks before trial, Fracker pleaded guilty in March to conspiring to obstruct the joint session of Congress that gathered on January 6 to certify now-President Joe Biden's victory in the 2020 election.
Fracker agreed as part of his plea deal to cooperate with the Justice Department. He is expected to testify against Roberston.
In her opening argument, Wagner asserted that Roberston "did not act corruptly" on January 6 and only entered the Capitol to "retrieve Mr. Fracker."
And while his social media posts might suggest otherwise, she told jurors, he "only entered, retrieved, and departed."
"Your job here today is to judge him for his actions," Wagner said, "not for his words."
