I believe that the storming of the Capitol will go down in history as the most shocking crime against the nation because it was instigated by the sitting United States President and his propaganda network.
So naturally, members of the propaganda network want to move on:
People like Kellyanne Conway, Senator Hawley, and Senator Cruz want to be able to “condemn” the violence they sparked and then avoid personal responsibility for their destructive lies.
The Public Authority Defense will make it harder for the Trumps, Giuliani, and pals to squirm out of facing consequences, which brings me to my latest Op Ed for The Washington Post (which I coauthored with my former colleague Mark Reichel, from back when I did criminal defense work).
You can read our Op Ed piece, here, on The Washington Post website, or here:
Federal agents spent the weekend arresting people around the nation who were allegedly part of the mob that stormed the Capitol on Wednesday after President Trump urged a crowd to “fight like hell” to overturn the election results. But many of those charged with crimes for their alleged roles in the riot can thus plausibly raise what is known as the “public authority” defense — arguing, essentially, that Trump gave them permission to do what they did.
Here’s how it works. Suppose the chief of police in a town told you that you could ignore a “no parking” sign and park in an otherwise forbidden place. Suppose also that you relied on his word and parked in that place. Then, later, suppose a police officer handed you a parking ticket.
You’d have a defense. Specifically, you could point your finger at the authority figure who invited you to commit the illegal act. The spotlight then turns to the authority figure: Did the chief of police have the authority to waive the parking restriction? If not, was it reasonable for you to believe that he did? Did you have reason to know that you shouldn’t park there, even if he told you that you should?
Each day, more evidence emerges that Trump and other elected officials instigated this riot. The rioters were lured to Washington with Trump’s promise that the day would “be wild.” At the rally, Rudolph W. Giuliani — Trump’s lawyer and close adviser — called for “trial by combat.” Rep. Mo Brooks (R-Ala.) told the crowd to “take names and kick ass.” Trump told the crowd, “When you catch somebody in a fraud, you’re allowed to go by very different rules.”
Journalists on the scene reported that the rioters were primed and ready for “action,” and many believed they should kill Vice President Pence. Sen. Josh Hawley (R-Mo.) gave the crowd the sign of a power fist on his way into the Capitol for the joint session of Congress that the riot disrupted. After repeatedly telling his supporters to take action, Trump said, “We’re going to walk down Pennsylvania Avenue, and we’re going to the Capitol. We going to try to give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country.”
When the crowd arrived at the Capitol, the guards opened the door and let them in. Trump went back to the White House and watched the coverage. He was reportedly elated. That the rioters genuinely believed they were acting at the direction of the appropriate authority figures explains their mood as they posted selfies and bragged about what they were doing on social media. If you think of yourself as a soldier doing the bidding of the commander in chief, you don’t try to hide your actions. You assume you will be held up as a hero by the nation.
The public authority defense is commonly used and well-known to defense lawyers. In the defining case, United States v. Tallmadge, a federally licensed gun dealer informed the defendant that his circumstances fit into an exception to the prohibition against felons owning firearms. The defendant relied on the dealer’s word and purchased the firearm. The court found that licensed firearm dealers are federal agents for gathering and dispensing information about the purchase of firearms. It was reasonable, therefore, for the defendant to rely on the dealer’s word. The defendant was thus found not guilty.
To take another example, in 2007, 12 residents of Sacramento and Fresno, Calif., were accused of plotting to overthrow the communist government of Laos. The U.S. attorney’s office dropped the charges after one of us, Mark Reichel, representing the defendants, pointed to evidence that they were lured into the conspiracy by an undercover federal agent posing as a CIA officer. The defendants reasonably believed they were acting at the urging of the American government and therefore wouldn’t be found guilty of entering a criminal conspiracy.
The public authority defense doesn’t necessarily mean the rioters are off the hook: They can still be arrested, charged and brought to trial. But depending on the circumstances, a defense like this one can mitigate or even eliminate their culpability or lessen their punishment.
The availability of this defense also makes it more likely that the instigators — including Trump — will face prosecution. After all, how would it look to a jury if the people who incited the failed insurrection go free, while the victims of lies and disinformation pay the price? Such an outcome is offensive to the idea of fairness and equal justice for all.
The lies maliciously and deliberately spread by Republican leaders were a direct cause of the riots. They told people that there was widespread fraud in the election, although they knew this was not true. Their victims may not have understood that judges were throwing these cases out of court because there was no evidence, but the lawyers representing the president and someone like Hawley — a graduate of Yale Law School — certainly did.
Many of the instigators of the riot — and many who spread the lies that sparked it — are now issuing carefully worded statements condemning the violence. This kind of doublespeak (instigate a riot and then disavow the resulting violence) may work in right-wing media outlets, but it should not work in a court of law, where facts still matter.
Given how tenaciously some Republicans are still clinging to their right to spread lies — even now, many Republican leaders are insisting that fraud in the 2020 election was widespread — it is perhaps too much to hope that the shocking example of how these lies led to the desecration and defilement of the Capitol Building will stop them. What it may take to stop them — and deter others from spreading lies — will be seeing their names dragged into a criminal trial as part of a defense, which in turn, shines the spotlight on them. Maybe they don’t care that their lies have deadly consequences. But they probably will care about their own criminal liability.
