When any criminal conspiracy climaxes badly, the same thing always happens. The Big Cheese, the figure high ranking in the organization who selfishly and strategically wouldn’t, and didn’t, get his fingers dirty, defends himself saying that his underlings were acting on their own: “I had nothing to do with it.”
The underlings typically try to reduce their exposure with the prosecutors. In doing so, they always point their fingers upward: “Yeah, even if I engaged in some minor wrongdoing, I was following directions. He told me to do it!” When a ship begins to sink, all of the rats try to abandon ship. It usually doesn’t so work well for any of them–particularly if there are audio or video recordings that can tell a jury exactly what happened, thereby providing the evidentiary links to prove the respective criminal roles of each player.
Donald Trump, one imagines, won’t be criminally prosecuted for his role in the Jan. 6 assault on the Capitol. The charge against him will exist solely in the context of his impeachment trial at the Senate (which he will likely win for reasons completely unrelated to guilt or innocence). Whether or not Trump executed for himself a secret pardon that he will wryly surface if prosecutors ever come looking for him as a target for having stoked the flame that dreadful day, Trump will employ the “protected speech” legal defense to discourage prosecutors from pulling the trigger against him.
Still, he’ll argue at the Senate–he already did in a public address before he left office—that the conduct of those who stormed the Capitol was reprehensible. Interesting. Trump wouldn’t ever forebear from looking out only for himself, even if speaking does direct harm to his foot soldiers who are now exposed criminally (as they should be)!
But what about the defense of sorts currently being presented by many defendants who were caught red-handed illegally inside the Capitol, or physically fighting off Capitol police? Loyalty on the part of many of them won’t remain when calmer heads prevail–when their lawyers, families and friends persuade them to abandon the “stolen election” defense (not a defense at all). Put simply, they have found the need to retreat to the obvious: “I was just doing what my President told me to do.” Yes, no one likes a rat, even one who has proven loyal until now!
Now, technically, “my president commanded me” constitutes no legal defense at all in a criminal courtroom. “Just following orders” didn’t work for the Nazis at Nuremberg, it didn’t work for William Calley of My Lai fame and it won’t work now especially since, unlike Hitler’s inner cadre, Trump didn’t actually order anyone.
It might, however, advantage a defendant as long as his conduct at the Capitol didn’t involve violence or serious incitement. So assume his criminal conduct, even if extremely troubling, was primarily a trespass. Or even a form of larceny, with no intent to forward congressional papers to a state enemy. In those circumstances telling a judge, with sincere remorsefulness, that he was blinded by his loyalty to a sitting president who somehow misled him–actually misled him—to believe that his election was stolen, might indeed go a long way.
But a long way to where? To outright dismissal of charges? Not likely. A guilty plea will be required absent a valid insanity defense. No American prosecutor would be willing to let a defendant totally off the hook given the flagrant spectacle that the world witnessed live on Jan. 6. And witnessed even more so when the horrendous videos began to pile up in the days that followed.
If, however, Trump were to demonstrate a scintilla of loyalty to those marauders so loyal to him, he could prove to be their messiah. That is, if after his Senate acquittal–it would only be then, lest he undermine his own Senate defense—he stood tall and told the American people that he was, indeed, the singular cause of what occurred.
If Trump were to sincerely say that it all would never have occurred if he hadn’t stoked the flame that day, for those of his followers who admit their wrongdoing in court (assume it wasn’t violent and inciteful), a statement like that by Trump could immeasurably help them lessen their punishment.
Yeah, right! As if, Trump’s going to do that. Followers: bring your toothbrushes to court.
Joel Cohen practices white collar criminal defense law as senior counsel at Stroock & Stroock & Lavan in New York. He is the author of “I Swear: The Meaning Of An Oath” (Vandeplas Publishing, 2019) and is an adjunct professor at both Fordham and Cardozo Law Schools.
[Image via Alexandria Detention Center]
This is an opinion piece. The views expressed in this article are those of just the author.