In the alternative realities of MAGA the January 6 insurrectionists were “entrapped” by FBI agent provocateurs who encouraged them to assault the Capitol to make Trump (and MAGA world) look bad. In the real world, not a single January 6 defendant has asserted an entrapment defense on grounds the FBI entrapped them into doing what they did.
However, as I have written, many January 6 defendants have pled for mercy on grounds that they did what they did because they believed they were doing what their President wanted them to do. Scores, perhaps hundreds, of defendants have sought leniency on grounds Trump’s words were what drove their actions. “I answered the call of my president,” they say, by those exact words and others.
The Public Authority/Entrapment By Estoppel Defenses
Now some defendants are going further. They are asserting a “public authority” (also called “entrapment by estoppel”) defense to the court. Federal Rule of Criminal Procedure 12.3 describes this as when a defendant asserts, “a defense of actual or believed exercise of public authority on behalf of a law enforcement agency or federal intelligence agency at the time of the alleged offense.”
In essence it argues that the defendant broke the law, but was told he could by someone with the authority to do so. It is an affirmative defense, meaning that defendant is excused from committing the illegal act even if he satisfied all the legal elements required to convict for the act. Other examples of affirmative defenses include statute of limitations, necessity, self defense or defense of others, etc. As an affirmative defense it differs from the usual rule where the prosecution must prove its case beyond reasonable doubt. Rather, the burden is on the defendant to prove by the preponderance of evidence that his violation of the law is excused by his reliance on a public authority.
Per that Rule 12.3 asserting the public authority defense requires the defendant notify the court of his intent to do so. This is in the form of a request to modify jury instructions to inform the jury they should acquit if they find the defendant proved the public authority defense to the preponderance of the evidence. Defendant submits a brief to the court arguing that evidence he will develop at trial will be sufficient to justify allowing the jury to consider this defense.
January 6 Defendant Asserting This Defense
You can read one such brief submitted by a January 6 defendant HERE. William Vogel is a January 6 defendant charged with misdemeanors, what some would call trespass related crimes. The nature of his public authority defense is that Donald Trump authorized any trespass he committed. In the words of his brief, the President has the authority:
“to issue executive orders that do not require the approval of Congress. The President is the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States. U.S. Const., Article II, Section 2. The President, at a minimum, has the authority to permit its citizens to enter into a government building . . . The President of the United States would certainly have the authority, at a minimum, to authorize an individual to demonstrate on Capitol Grounds and could authorize access to the Capitol building . . . Mr. Vogel relied on the highest ranking official in the Executive Branch, the President, who concluded that it was okay for them all to march to and into the Capitol. There is no reason to believe that the President is not vested with such authority to declare once restricted grounds no longer restricted.”
Vogel argues that Trump’s speech at the Ellipse encouraging him, and others, to go “over to the Capitol building” to “stop the steal” did exactly that. Vogel quotes Trump as saying, “we’re going to the Capitol, and we’re going to try and give them the kind of pride and boldness that they need to take back our country.” From that Vogel argues that he:
“had no reason to believe that the President had not authorized them, at a minimum, to be able to enter, walk freely, and demonstrate at the Capitol. The President never once warned the crowd not to actually enter the building and was very clear that he was going to join them.”
That “enter” part might be a bit of a reach, and expect the government to push back on that point, but it’s certainly not a frivolous claim to make when the standard for inclusion in jury instructions is whether a reasonable jury might believe it. Does urging one to walk to Capitol suggest walking into the Capitol? If I say, “I am going to the store,” does that not suggest I am going into the store? Vogel’s lawyer did not ask that question, but perhaps he should.
Will Trump Have To Testify?
Let’s go back to that Rule 12.3 for a minute. The government must normally reply, presumably arguing against including it in jury instructions, within ten days of defendant’s filing of the notice (which was on January 23d). At that time the government gets to ask the defendant what witnesses it will seek to testify as part of this public authority/entrapment by estoppel defense. Will the defendant seek to have Trump testify?
Trump is arguably a relevant witness. He is the public authority upon which defendant asserts he relied on. Defendant’s counsel could ask Trump whether he believed he could authorize defendant’s conduct. Defense counsel might ask Trump to expand upon when he said: “When somebody is the president of the United States, the authority is total. And that’s the way it’s got to be. It’s total.”
Something interesting to consider. In other contexts, January 6 judges have denied defendant’s request to order Trump’s testimony in regards to sentencing. However, this is a very different question. At issue is the defendant’s very guilt or innocence depending on Trump’s words, and even what Trump meant by them.
A fascinating possibility to consider.
Will The Judge Allow The Defense?
Even getting to the question of whether Trump would testify presumes the Judge would approve the defendant’s request to allow the jury to consider the public authority defense. That is far from certain. The defense requires that the defendant reasonably relied upon the public authority. In that, defendant’s counsel has pled his case well, but will still have a daunting task.
The defendant’s brief cites two cases that are illustrative of the difficulties this defendant faces. The first is United States v. Cox, 906 F.3d 1170, (10th Cir. 2018). Cox bought and possessed a silencer for a gun in violation of a federal statute, the National Firearms Act. Cox argued he reasonably relied on the “public authority” of Kansas’s Second Amendment Protection Act (SAPA), which exempted any personal firearm or firearm accessory within Kansas from federal law.
Notably, Cox lost this argument even though his reliance was on an actual state statute. Having concluded the 2d Amendment did not protect accessories like silencers, the court then (for rather technical reasons) concluded Cox’s reliance on the state law, in clear conflict with the federal law, was not reasonable. The defendant’s brief for Vogel cites the court’s favorable statement of the standards for the public authority defense without noting that the court found those standards were not met.
The second case cited by Vogel is the Supreme Court case of Raley v. State of Ohio, 360 U.S. 423 (1959), which does has the charm of being an actual successful assertion of a public authority defense. In that case a State of Ohio version of the McCarthy Committee for Un-American activities asked a witness to explain whether they were involved in the Communist party activities. Ms. Raley pled the 5th. She was convicted for doing so because an Ohio law afforded immunity to prosecution based on such testimony.
Alas, there remained a problem. The Commission questioning her had flat out directly and explicitly told her she could invoke the 5th. Thus to prosecute her for doing so “entrapped” her as she merely did what the public authority questioning her clearly told he she could do.
So is Vogel’s case more akin to the Cox’s failure to meet the legal standard for the public authority defense, or more akin to Raley’s successful use of that standard? I don’t think it is a slam dunk either way. Let’s wait to see if defense attempts to call Trump before diving deeper into that.
The Real Story Here
The real story here is that a defendant is credibly arguing to a judge that a jury deserves to consider whether he is innocent because he reasonably relied on a belief of what Trump told him to do. If Mr. Vogel is innocent for that reason, what is Trump guilty of?