There are usually four basic strategies that criminal attorneys employ to try to get their clients off: innocence, constitutional violations, self-defense and insanity.
In the case of Dustin Byron Thompson, who is being tried in DC for storming the U.S. Capitol on Jan. 6, his lawyer was thinking outside the box, running an imaginative variation on the theme of an innocence defense. Thompson’s attorney argued to the jury that former President Trump abused his power to “authorize” the attack, claiming that Trump duped “vulnerable” people like Thompson who “believed the lies fed to them.”
“It’s Donald Trump himself spewing the lies and using his position to authorize the assault,” the lawyer told the jury. Does this line of argument suffice to exonerate Thompson? Or is this what Gilbert and Sullivan called throwing “dust in a juryman’s eyes”? Thompson vainly tried to subpoena Trump, but Trump would be unlikely to testify anyway that he “authorized” Thompson to storm the Capitol and steal a coat rack. The jury didn’t buy it, and Thompson was found guilty.
Normally, the declarations of an agent are not in themselves sufficient to establish his or her authority. The principal has to do something too. There must be an express agency or what lawyers call a “holding out” by the principal that the agent has authority. The argument is heavy lifting, particularly with a jury, and did not succeed.
But Thompson’s lawyers should have run another defense, entrapment. Entrapment occurs where a law enforcement agent or agent of the state induces a person to commit a “crime” that the person would have otherwise been unlikely or unwilling to commit, that is where the government is acting as an agent provocateur. The Justice Department defines entrapment as having two elements: “(1)government inducement of the crime, and (2) the defendant’s lack of predisposition to engage in the criminal conduct.” Both elements may be present in Thompson’s case.
An FBI sting operation in which the government invents the crime or pressures or deceives the defendant into committing it might be a good example. John DeLorean argued entrapment and was acquitted of drug charges after FBI agents lured him to a hotel with the promise of money to save his failing company.
By Jan. 6, Trump had declared himself the “chief law enforcement officer of America,” and he probably was since he took an oath under the Constitution “to take care that the Laws be faithfully executed.” If Thompson could be entrapped by undercover agents of the FBI, he certainly could have been entrapped by the “chief law enforcement officer of America,” provided that he would not otherwise have committed the crime.
Entrapment does not exist where the government merely creates the opportunity to commit the crime. The government must induce it. For example, an undercover agent buying drugs from a dealer who had the drugs in the first place would not have been guilty of entrapment. Trump’s exhortations on Jan. 6 were false, inciteful and inflammatory. He stirred the mob with bogus claims of election fraud, which he knew to be false. His speech was riddled with violent imagery with only a nod to nonviolent protest.
He urged his followers to “fight back much harder” against “bad people” and “show strength”; that when you catch somebody in a fraud “you are allowed to go by very different rules”; that he wanted his followers to stop the certification of Biden’s victory, not just protest it; that his supporters had to “stop the steal” and “fight like hell” or “you’re not going to have a country anymore.”
And to put icing on the cake, he told them, “We’re going to walk down, and I’ll be there with you…. We’re going to the Capitol and “try to give [our Republicans] the kind of pride and boldness they need to take back our country.”
Of course, Trump never walked down to the Capitol, and there was no fraud and no steal. The courts turned down that claim more than 50 times, and it was debunked by his own attorney general the month before.
Trump contended that former Vice President Mike Pence must have the “courage” to reject the state-certified results, and it would be legitimate because “very different rules applied.” The crowd responded with the repeated chant: “Hang Mike Pence!” So, the question is, who makes the music? The orchestra or the conductor?
Trump duped his followers, and those who breached the Capitol like Thompson may fairly argue they are innocent by reason of entrapment.
And underscoring the total mix of evidence that Trump’s call to arms incited the breach of the Capitol is Federal Judge David Carter’s observation that, “more likely than not” Trump committed felony obstruction in the effort to overturn the 2020 presidential election.
Thompson will be sentenced in July, and he will probably be sent to jail for his role in the attack. But Trump is at least as guilty as he was. On Jan. 6, we saw the sorry spectacle of thugs and con men shaking the rafters of American democracy. Attorney General Merrick Garland, take notice. It was not Dustin Byron Thompson who committed the crime so much as the president who put him up to it.
James D. Zirin is a former federal prosecutor in the Southern District of New York.