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Could Rioters' Defense Be: 'Trump Said It Was OK'?

WASHINGTON, DC - AUGUST 05: U.S. President Donald Trump speaks during a news conference in the James Brady Press Briefing Room of the White House on August 5, 2020 in Washington, DC. Trump administration officials and Democratic Congressional leaders continue to negotiate on an extension of the unemployment benefits and an additional coronavirus economic stabilization and relief package.  (Photo by Alex Wong/Getty Images)
By Richard Dahl on January 12, 2021 6:05 PM

Let's say you know the police chief in your town and he tells you it's OK to park in a "No Parking" zone. Let's say that you do and when you come back to your car, there's a parking ticket tucked beneath your windshield wiper.

If you would decide to contest the matter in traffic court, you might have a strong case. That's because you received permission from a "public authority" to do something that otherwise would be considered illegal.

In criminal law, it's called the "public authority" defense, and on January 11 two attorneys wrote in the Washington Post that it could plausibly be used by people charged with crimes connected to the Capitol Building riot in Washington, D.C. five days earlier. In that case, of course, we're talking about a public authority known as the President of the United States.

"Each day, more evidence emerges that Trump and other elected officials instigated this riot," write Teri Kanefield and Mark Reichel. "The rioters were lured to Washington with Trump's promise that the day would 'be wild.'"

Trump had continued to claim that the election had been "stolen" by Democrats engaging in voter fraud. That morning he told a crowd of supporters, "When you catch somebody in a fraud, you're allowed to go by very different rules."

The Impact of Provocative Words

At least on their face, those words from a very powerful public authority would seem to convey permission to break those rules. Since that day, of course, the belief that Trump is largely responsible for the riot and therefore deserves punishment has expanded. On January 11, Quinnipiac University released a poll finding that 56% of Americans hold Trump responsible.

The FBI, meanwhile, has made numerous arrests and is hunting down suspects in connection with the riot.

With so much pressure on Trump, defense lawyers for the emerging defendants are no doubt aware of the potential value of a "public authority" argument in this case.

Kanefield and Reichel point out the argument is commonly used and is well-known to defense lawyers. In a defining case, United States v. Tallmadge, a defendant charged with illegal gun possession successfully used it to obtain a not-guilty verdict. A former felon, the defendant was prohibited from gun ownership, but bought one after a federally licensed firearms dealer told him that his circumstances provided an exception. A court found that federal dealers are federal agents who meet the standard of "public authority."

A Stronger Case Against Instigators?

Kanefield and Reichel note that if the Capitol rioters use the defense, it doesn't necessarily mean it could let them off the hook. More likely, it could reduce the severity of any punishment.

They also say its use in this instance could make matters worse for Trump and other alleged instigators.

"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."

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