Terry H. Schwadron
Jan. 18, 2021
With threatened right-wing protests in Washington and around state houses very muted yesterday, there was consideration of the defense strategies taking shape among those responsible for the Capitol insurrection.
Curiously, defenses for actual rioters may put more blame on Donald Trump.
For anyone hoping that any of these pending legal actions will end this chapter, the arguments are anything but hopeful.
As we know, Trump says flatly that he did nothing to incite the rioting, despite his fiery send-off to his red-hatted followers towards the Capitol to stop any certification of election results. Therefore, there’s no contrition, and thus and a need for a trial now for impeachment — which sets a different legal bar than criminal charges. Still, possible criminal charges loom, as do possible civil claims from those who died or were injured in the attacks. Of course, Trump can still issue pardons in federal cases, threatening to include himself, or, as The New York Times was reporting, for those offering to pay lawyers big money to lobby Trump.
The insistence-on-right has pushed Trump loyalists in Congress and in right-wing media sites to argue that convicting Trump of impeachment would not only prove ineffective post-presidency, but be wrong-headed. Either Trump’s words were free speech and weren’t inciting despite months of false buildup over non-existent election fraud, they argue, or impeachment won’t “heal” the nation. They avoid connecting the obvious dots here.
Trump is having trouble getting a lawyer. Still, lawyer Alan Dershowitz, who now says he will not join Rudy Giuliani, who himself may face disbarment and possible charges, to defend Trump is opening disdainful that any political speech by a sitting president can be considered Constitutionally illegal; Rudy insists he is available for the job and wants to retry election fraud as a defense because the fraud is true. Still, any fact or opinion seem to lag well behind the strictly political questions of whether 17 Republican Senators will turn away from Trump — which rests on the mercurial attitudes of leader Mitch McConnell, who says he is open to conviction but is in no hurry.
Meanwhile, any number of the 200 people already arrested by the FBI on crimes of breaking into Congress with thoughts of assault, kidnap and killing are saying they did what Trump told them to do. Depending on individual circumstances, they see this as a a defense to mitigate or eliminate their guilt or punishment.
Indeed, they see themselves as heroes willing to stand up for their president. They apparently think that following orders is an off-ramp for responsibility. At the same time, the FBI said families, friends and even partners on dating services were identifying rioters.
To hear right-leaning columnists, it’s Antifa who’s at fault, masquerading as a MAGA army, or Democrats who refuse to overturn election results or Capitol police for failing to set up appropriate security. To them, there’s been no crime of incitement. It just happened because justified anger at Democrats boiled over.
Apparently Sean Hannity, Tucker Carlson, Lou Dobbs and friends would have us just ignore that there was an attempted coup engineered against the American government by its own president.
Also denying any role in what happened are Senators Ted Cruz and Josh Hawley, who seem to be deaf to any calls for responsibility from their fellow senators for continuing to deny election outcomes in the hours after the Capitol was finally cleared. We hear no expressions of responsibility from Republican House members who are under investigation for actually helping insurgents learn their way around the Capitol on the day or two before the insurrection.
Indeed, they continue to say that the election of Joe Biden is legally questionable while their own is not.
At the rally before the attacks, Giuliani called for “trial by combat.” Rep. Mo Brooks , R-Ala., told the crowd to “start taking down names and kicking ass.” Trump told his audience, “When you catch somebody in a fraud, you’re allowed to go by very different rules.”
Beyond that circle of direct participants are the roles for the Trump helpers. ABC News detailed the participation of Roger Stone, Steve Bannon and the disgraced former National Security Adviser Michael T. Flynn in helping Trump to engineer the assault on the Capitol. All have resurfaced in recent weeks to help promote the Stop the Steal events that devolved into the Capitol attack. None spoke that day, but all were active in the planning and promotion.
Their defense is that all they did was talk or raise money for those who did act. In the legal sense, their work was evidence of intent, of course, and remarks by Flynn and Stone promoting actual physical resistance could be read as evidence by prosecutors looking at just organization or financing towards sedition.
When you look at all of these defenses, what you see is a general claim that if public authorities, including Team Trump, gave permission to break the law, defendants have a good shot at winning acquittals.
Rioters who posted selfies and bragged on video about taking over the halls of Congress may well have thought they were protected by Trump’s constant directives to take action, to avoid “weakness,” to “fight like hell.” So, lies maliciously and deliberately spread by Republican leaders were a direct cause of the riots.
And several rioters charged with crimes have said they hope Trump will pardon them before he leaves office on Wednesday since they believed they were following his instructions.
Of course, it would be total irony if the words of the actual Capitol combatants puts the legal blame back on Trump and his inner circle. For sure, we will be hearing the words of those rioters as part of the prosecution of the impeachment trial.