'Trump said I could': One possible legal defense for accused rioters
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 Donald 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, Rudy 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 a$$." 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.