As the FBI and local law enforcement officials continue to sniff out and round up members of the mob that stormed the Capitol on January 6th, there are a few distinct defensive arguments being deployed by attorneys from coast to coast.
The most prevalent of these arguments is the “Trump made me do it” defense, in which the defendant is said to believe that the President themselves directly ordered the attack on the Capitol.
This is a fairly bold stance to take, of course, with Trump having already been acquitted by the Senate on the charge of “inciting an insurrection”.
Furthermore, as one judge in Kansas pointed out, the argument doesn’t seem to reflect a proper understanding of the American political system.
At a bail hearing Tuesday for a Proud Boy member from Kansas accused of storming the Capitol, Chief U.S. District Court Judge Beryl Howell said she was dubious about the legal merit of the effort to shift blame toward the former president and his inflammatory rhetoric about the election.
“This purported defense, if recognized, would undermine the rule of law,” Howell said during the videoconference court session for William Chrestman, 47. “Then, just like a king or a dictator, the president could dictate what would be legal and what isn’t in this country, and that is not how we operate here.”
Lawyers for Chrestman pointed to several Supreme Court cases that they said indicated that guidance from government officials can sometimes be a defense against criminal charges. They said Trump’s encouragement amounted to that kind of all-clear for those who forced their way into the Capitol during the counting of Electoral College votes on Jan. 6.
“Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did,” Chrestman’s lawyers, Kirk Redmond and Chekasha Ramsey, wrote in a court filing last week.
The judge broke it down with a pointed hypothetical:
“If President Trump ordered or instructed a member of the Proud Boys [to] go off and murder somebody and someone went off and did that, it follows that … would immunize them from liability for that criminal act? … In effect, isn’t that what your argument is saying?” the judge asked Redmond.
“I don’t think so. … It’s not going to extend to every defendant,” Redmond replied.
This appears to be the preeminent strategy being employed by defense attorneys for the various Capitol rioters, but the argument doesn’t seem to be sticking in many places.
This ferocious rebuke could make it easier for other judges to make the same point.
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