Monday, December 13, 2021

The Entrapment by Estoppel Defense – Why Blaming Trump Will Not Work

Defendants in the January 6 storming of the Capitol have relied on a variety of defenses, some serious, others outright silly. A common thread has been the implication that Donald Trump encouraged them to act.

We now have a case where a Trump-specific defense is being offered – entrapment by estoppel.

What is that defense and why are prosecutors are saying it should not be allowed?

First, an analogy: a bank robber claims he should not be found guilty because the Chief of Police told him it was okay. In other words, the prosecutor is precluded (estopped) from charging him because he himself was being victimized (entrapped). In order to win, our pantyhose-masked perpetrator must show five things:

1.    The police chief had the authority to give him that advice.

2.    The police chief was aware of existing law and facts before giving the advice.

3.    The police chief affirmatively told the defendant to go ahead and rob the bank.

4.    The defendant relied on the advice.

5.    It was reasonable to rely on the advice.

Yes, this is a ludicrous case, but it shows how high the standard can be if you expect to win.

The problems for this January 6 defendant are myriad.

First, did Trump have the authority to advise him to create mayhem inside the Capitol, especially considering rules for conduct at that institution? Well, we have already lost here, but we may as well continue.

Second, did Trump affirmatively tell the defendant to commit those acts? There is a fact question here about what Trump really said. However,

Third, defendant claims that he relied on that advice.

So, fourth, was it reasonable to rely on this advice?

Reasonableness is always the key in these cases. Think about when your mother asks: “if everyone else jumped off the bridge, would you too?”

As a defense lawyer, my best witness would be Trump himself. I would have him state under oath that as Commander in Chief, he had the authority to abrogate rules of conduct at the Capitol. Further, that he told people to storm the capital. And finally, that people had every reason to believe him when he said the conduct was permitted.

We all know that this testimony will never happen. The defense cannot win without it. This is why the prosecutor is arguing that the defense argument should not be considered.

Then why is the defense using this argument at all? It is really all they have. If, as so many have claimed, they only acted upon the encouragement from Trump, there was an expectation that he would have their backs. Perhaps that would mean the grant of some sort of amnesty or pardon after the fact. At the very least, it might mean that Trump would cover some of their legal expenses.

Obviously, none of that occurred. As noted above, “reasonableness is always the key in these cases.” These defendants may now be asking themselves whether it was reasonable to believe Trump would have their backs. Then again, maybe not. There’s always the Miracle on 34th Street.


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