Prosecutor says Thomas Robertson was trying to block the electoral vote count, but the defense says he went into the Capitol only to retrieve a friend.
The second jury trial stemming from the storming of the Capitol on Jan. 6, 2021, got underway Tuesday with an attorney for former Virginia police officer Thomas Robertson arguing that he never clashed with law enforcement at the Capitol and went into the building only to retrieve a friend who entered during the mayhem.
Robertson, who was arrested one week after the riot and fired by the police force in Rocky Mount, Va., early last year, is fighting five felony charges and one misdemeanor, including attempting to obstruct Congress from certifying the presidential election, interfering with police during a civil disorder and obstruction of justice.
Prosecutors contend that Robertson wielded a long wooden pole during a standoff with police at the Capitol, entered the building during the riot and later boasted about it on social media.
“There was chaos, broken glass everywhere and alarms blaring,” Assistant U.S. Attorney Elizabeth Aloi said in her opening statement. “He took a victory lap.”
Aloi said Robertson was girding for a fight when he traveled to Washington, bringing a large wooden stick and three gas masks along for the ride.
“In the days leading up to Jan 6th, the defendant had been clear in his calls for violence,” Aloi said. She said Robertson’s social media accounts were filled with combative and callous language.
“A legitimate republic stands on four boxes: the soap box, the ballot box, the jury box and then the cartridge box,” Robertson said in one message before the riot. Aloi said that after the riot, Robertson celebrated the images of lawmakers hiding as a mob surged through the Capitol.
“The pictures of them huddled in [sic] the floor crying is the most American thing I have ever seen,” he allegedly wrote.
Defense attorney Camille Wagner quickly conceded that her client went into the Capitol on Jan. 6, but she insisted that Robertson — whom she referred to by his initials, “T.J.” — never tried to interfere with police or the electoral count.
“You’re not going to see T.J. engaging in any violence. You’re not going to see T.J. damaging any property,” Wagner said.
The defense lawyer painted a sympathetic picture of Robertson, noting that he is a combat veteran and was wounded by gunfire in an ambush in Afghanistan in 2011. That left him with a limp and is why he had a wooden pole at the Capitol when the riot broke out, she said. “It is used because of the serious injuries that he suffered while in Afghanistan,” Wagner said.
Wagner said Robertson never struck anyone with what she called a “walking stick” and never even held it out. She said at one point the pole became stuck in an officer’s gun belt, but only because of the jostling and pushing involving officers and demonstrators.
“Let’s just say things were very chaotic,” Wagner declared. “There is a wild crowd behind him that is pushing and pushing and pushing.”
Wagner also said Robertson’s comments on social media shouldn’t be taken at face value.
“Social media is not reality. You can be or say anything you want on social media,” she said. “Hey, anything for the ‘gram or Facebook. It’s not reality.”
Wagner appeared to promise jurors that Robertson will testify in his own defense. If that happens, it will be one of the first times a Jan. 6 defendant has taken the stand at their own trial.
“T.J. is going to admit to you his wrongs,” Wagner said.
Robertson’s alleged actions on Jan. 6 don’t seem to place him among the most egregious cases of attacks on police, but it is the first time the government has gone before a jury in a case involving a defendant who actually entered the Capitol.
The first two trials of Jan. 6 defendants were to some degree outlier cases, while the evidence against Robertson from that day mirrors that in hundreds of other Capitol riot cases.
Prosecutors do enjoy some tactical advantages against Robertson.
A fellow police officer who traveled to Washington with Robertson on Jan. 6 and was charged along with him, Jacob Fracker, pleaded guilty last month to conspiracy to obstruct Congress. As part of a plea deal, Fracker is cooperating with prosecutors and is expected to testify against Robertson.
Wagner suggested to jurors on Tuesday that Fracker, who was also fired from the same police department, is being disloyal by turning on Robertson. She called him “his supposed friend” and said Fracker was “like a son to T.J.”
The biggest challenge for Robertson’s defense may be the obstruction of justice charge he faces over an allegation of getting rid of his and Fracker’s phones after Jan. 6. Aloi read jurors a series of what she called incriminating text messages Robertson sent.
“Anything that [may] have been problematic is destroyed … including my old phone,” Robertson wrote on Jan. 15, she said. “Took a lake swim and later had a tragic boating accident …They asked for my phone but I’m not a retard.”
Wagner suggested that disposing of the phones wasn’t part of a cover-up, noting that Robertson didn’t do anything to hide laptops, an iPad, the stick or the backpacks he and Fracker wore on Jan. 6. The defense attorney didn’t say exactly why Robertson got rid of the phones, but said somewhat cryptically: “There are some things that are supposed to remain private.”
U.S. District Court Judge Christopher Cooper, an appointee of former President Barack Obama, is presiding over the trial. The lead-off witness for the prosecution, Capitol Police Capt. Ronald Ortega, gave jurors a broad overview of the disruption caused by the riot on Jan. 6 and how the mob overcame police defenses. Jurors also saw video of Robertson entering the Capitol within four minutes of the doors first being breached.
So far, of about 800 people charged with crimes related to Jan. 6, roughly 200 have pleaded guilty. They’ve received sentences ranging from probation to more than five years in prison.
The first trial of a Capitol Riot defendant, Texas militia member Guy Reffitt, led to a jury in Washington convicting him on all five felony charges he faced.
One other Jan. 6 defendant, New Mexico County Commissioner Couy Griffin, passed up his right to a jury trial and went to trial last month in front of U.S. District Court Judge Trevor McFadden. McFadden found Griffin guilty of a misdemeanor entering a restricted area set up for a Secret Service protectee, but acquitted him of disorderly conduct.
Another defendant, Matthew Martin, went before McFadden for a bench trial that also began on Tuesday on four misdemeanor charges related to the riot.
Kyle Cheney contributed to this report.
