The Capitol is a crime scene.
The rioters in the Capitol may be guilty of trespassing, vandalism, attempted kidnapping, murder, and, of course, insurrection.
They were gullible. They believed a demagogue. They were brainwashed.
The penalty for destruction of federal monuments is ten years in prison, as President Trump proudly announced this summer. The crimes committed in the Capitol include destruction of property and more. The FBI says they have information that many people were plotting kidnapping and murder. People inside the Capitol considered it "war," the FBI said. They wanted to stop Congress from carrying out its duties. They wanted to overthrow an election.
These are crimes.
Some of the photos of the rioters show them in costumes. Some may have had a "spring break" mentality, thinking a little taste of fun-loving threats by an angry crowd would knock some sense into the weak-willed Republicans who Trump said could save the republic. I am aware of prominent local citizens who travelled to DC to be part of this. Perhaps they thought they would be a witness to history, the overturning of an election. Perhaps they just wanted to show their support for Trump.
The Capital insurrection was a high crime made up of multiple small crimes. There were cameras everywhere, including those held by fellow attendees. Heads up to readers who were there on January 6. Facebook posts and text messages to friends don't really get deleted when a person clicks "delete." The phone company knows exactly where you were. The evidence is still there in servers, discoverable and recoverable by the FBI. It may contain evidence of a federal crime with your face and a timestamp.
The brainwash defense. People facing ten years in federal prison will want to raise a defense. Was it insanity? Were they brainwashed?
Can it be simply that they believed people who lied to them? Can they say they didn't have the mental state of criminals and instead believed they were patriots, saving American democracy from a stolen election, acting at the command of the Commander in Chief? Could that be enough? After all, their understanding of the world was shaped by what they learned from trusted and very public sources. They all had a consistent message that the election was stolen. Trump said that assertions to the contrary by election officials in the states and the federal government--even Republican ones appointed by Trump--were misinformed, or by co-conspirators in the fraud, or were made out of cowardice.
How do we know what we know? There is a monument in the Cambridge, Massachusetts "Common," a public park, which reports that it is the location where General George Washington met with the Massachusetts militiamen and took command of them, forming the Continental Army. Given the technology of that day, it is certain that few of those men had seen George Washington personally or had any basis for independent knowledge that the man in front of them was, in fact, Washington, or that his credentials to take charge were legitimate. They would have acted on "common knowledge" signals from other trusted people that this was all legitimate. Based on that trust and presumption, they put at risk their lives at the direction of this man.
No doubt many of the demonstrators and Capitol rioters were dead serious, earnest people, feeling assured that they were operating within "reality." They have seen Trump in person in front of them right then, and on TV a thousand times. They had multiple confirmations that Trump was President, that Giuliani was his lawyer, that Don Junior and Eric were his sons, and that congressmen and senators agreed with Trump that the election was stolen.
They heard what they heard. Trump said that a great crime was taking place. They were there to "stop the steal." It was a rally to "Save America." They were making things right. A "stop the steal" organizer, Ali Alexander, said "These degenerates in the deep state are going to give us what we want, or we are going to shut this country down." Alexander achieved national prominence and had been invited to the White House after a tweet of his went viral. It said Kamala Harris was not a legitimate American Black because her father was from Jamaica. He got a photo opportunity with Trump. The people saying "stop the steal" were connected to top leadership. Presumably they knew something.
I posed a question to some of the lawyers who read this blog. How would they distinguish the behavior of the lawyers from this instance of my hypothetically taking direct action as a citizen?
Suppose I were driving on a country road and a person in a police uniform waved me down and told me there was an accident just ahead and he desperately needed me to stop traffic behind me to keep people from plowing into the accident scene. Suppose he asked me to wave down traffic and tell them to wait, perhaps at great inconvenience to them. I would do so. If, later, I learned that I was actually helping a robbery getaway car by causing a traffic jam, and that the "policeman" was a co-conspirator in the robbery, my defense would be that I thought I was helping out in an emergency, being a good citizen, under instructions from an authority.
Would not that be the correct defense for the rioters--that the person they knew to be the Commander in Chief had told them, insistently, that this was an emergency and they were needed to do a citizen arrest to stop a catastrophe?
The events on January 6 make evident now that Donald Trump was trying to overthrow an election, and he nearly succeeded first with legislatures and local officials, then with Republicans in Congress. Then he incited an insurrection. He wanted to hold power by extra-Constitutional means. He sold the idea that there was justification for voideing the election.
Militiamen on the ground in front of Washington and citizens in the audience in front of Trump would logically presume that the leaders have access to more information than they do. If Washington says that there are cannons at Fort Ticonderoga, then it is probably true. He might know. If Trump says the election had been stolen, then presumably he knows.
I do not excuse the rioters.They were criminally stupid, and people often pay a price for rash stupidity. I expect several hundred of them--maybe more--will spend a decade or more in prison for the crimes they committed. They believed a giant, self-serving lie by Donald Trump.
Punishment for being part of the Capitol insurrection will send the lesson of the hot stove: It is dangerous to believe authoritarian leaders. Fall for it and you may go to prison a long time. The politicians will escape prison, which is deeply unfair, but it is the inevitable way of the world. The people who lied are morally the more guilty, but they will pay only a political price, perhaps, but not a legal one.
If rioters at the Capitol lose a decade or more of their lives in prison, their misery will not have been in vain. Their punishment will send a message of warning to Americans. Don't send bank information to a Nigerian prince. Don't exceed the speed limit going through small Southern towns. Hard lessons for the incautious.
The rioters will have been patriots after all. They will have served their country by doing prison time, being a vivid warning to the public. They will show what happens to people who believe authoritarian demagogues.
6 comments:
I don't think the "I was brainwashed" defense will go very far, if it's used at all. In fact, I expect many of the perpetrators will be defiant in court, a repudiation would be a collapse of their worldview. We'll see how many plead not guilty.
What's really hard to process is the success of the "Big Lie", though it appears the internet has enabled falsehoods to propagate.
Republicans have promoted myths about poverty, race, and science for decades, a multitude of Big Lies that fed into the prejudices of a growing constituency. Starting with Nixon, they set the stage for an ever emboldened parade of soulless demagogues that led to the worst Big Lie, the nefarious, viscous lie of a stolen election.
How could the result have been any different? Lie, lie, lie for years until a gullible and ignorant mob is so confused and fearful that it felt the need for violence.
While that's not an excuse for their actions, it is an argument for culpability of those who they follow.
Can Trump proactively pardon them?
(Asking for a friend...)
I think so, it worked for Herbert Walker Bush. Of course, they are then subject to being forced to testify, under oath, without recourse to the 5th Amendment.
Regarding the analogous cases you posed to the lawyer, I'll begin by stating that I recognize that analogies aren't equalities--one expects significant differences. But the similarities must be enough so that one can learn something from the one case to apply to the other. For example, the analogy of a car and its driver to a package and its contents obviously ignores the active role the driver has. Nonetheless, the analogy calls attention to the benefit of making the car as protective of the driver as we can, which points us to such improvements as air bags and lane crossing alarms.
The major difference between the two cases you analogized is that what the deluded motorist was asked to do—-flag some cars to stop—-was not in itself a crime. The only crime was unwittingly to abet a crime committed by others transpiring out of his ken. Conversely, the deluded Trump supporters personally and knowingly committed the crimes for which they will be prosecuted.
The major similarity of the cases is that the motorist and the Trump supporters were misled into doing what some might have thought was right to do. But even here there is a difference that I consider determinative. While no one was telling the motorist anything that contradicted what he heard from the criminal, many people—-and many people in authoritative positions, such as election officials and judges-—were contradicting Trump’s claims. His adherents chose to ignore the other voices.
Does your analogy help us see something we wouldn't otherwise have
despite the significant differences between the two cases? If so, I’m missing it. All of us at one time or another have believed misleading information. Perhaps we have acted upon that belief to our detriment (many people get scammed and lose money, even their life savings). Few of us, however, commit crimes based on false information.
I think a far better analogy would have been those who fought the war against Iraq based on the fraudulent information the George W. Bush administration peddled. They committed major crimes at the behest of their President. Unfortunately, no current legal regime exists to hold accountable in such cases either the misleaders or the misled.
Watching those who even consider the argument that all transgressions must be forgotten for the sake of "unity" puts me in mind of the old saying that “a liberal is a man who will not take his own side in an argument".
These guys were not dupes. They had a mindset to hate government rules. These are the guys who use explosives to catch fish, or feel they can use suction dredging to mine for gold, or graze cattle on BLM land without paying. Their rules are right. They blame blacks and Mexicans for stealing their tax money and taking away their jobs. They believe Jews control capital, the entertainment industry, and fake news. They are sure these rag heads want to do away with The corner church which they don’t attend. Trump is their mouthpiece. They didn’t react to what he said but used his show to act out their own agenda, be actors in the script, get featured in the big production on the hill. They love violence and brawling, they love hating, they also love the power of weapons. Trump was their big excuse to act out. It’s all on them and Trump loved every minute of the TV SHOW from his bunker.
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