The “it’s Trump’s fault” defense to January 6

One of the most iconic pictures of the Capitol assault is of the “shaman” in full regalia, the visual equivalent of the running of the bulls on steroids. Facing a number of criminal charges, Jacob Chansley has been held in custody. His lawyer has now filed an extensive pleading, asking for pre-trial release. A part of the argument is what you would expect: this is really a nice, peaceful guy (who even does “catch and release” of flies) who is truly sorry for what he did.

The main focus of the pleading, though, is that the reason Chansley acted in a way that was completely out of character was the agitation and a call to action by then president Trump. Chansley’s defense, then, is a blame-shifting strategy. His legal premise is a principle called “estoppel by entrapment.” Translated, the term means that you are barred (estopped) from charging me because I got sucked in.

Since many other defendants are also blaming Trump for their actions on January 6, let’s look at what they will need to prove to escape liability for their actions.

In Raley v. Ohio (1959), the U.S. Supreme Court outlined what you need to substantiate in order for this defense to work. You must prove that a “government agent” announced that the action was legal, that the defendant relied on the announcement, that the reliance was reasonable, and that prosecution would be unfair, given the defendant’s reliance.

In the minds of these defendants, the first two components are a given: an announcement that their actions would be legal and that they relied on those representations. They claim that they were following a call to action, to “stop the steal.”

If that is true, the crux of the defense becomes whether the reliance was reasonable. Reasonableness is, at best, a difficult standard to define. What it generally boils down to is whether someone who is thinking clearly would consider an action to be a rational response.

The prosecutor will argue against “reasonableness” in a sequential way.

Is it reasonable to believe that the election was stolen, after more than 60 contrary court opinions and the statement by the Justice Department that this was “the most secure election in history?”

If so, is it a reasonable response to attempt to stop the administrative act of counting electoral votes?

If so, is it a reasonable response to storm the Capitol, resulting in massive property damage and death?

If so, is it reasonable to believe (as other defendants have alleged) that the president would pardon you for felonious actions?

Taken as a whole, “the reliance was reasonable” will be a difficult defense to prove.

Whether the former president is independently liable for his role in the storming of the Capitol is a completely separate question. We already know Chansley’s opinion on that issue.