Attorneys for Proud Boy and alleged Capitol Hill rioter William Chrestman are trying out a new iteration of an increasingly common defense in a bid to get their client out of jail: blame former president Donald Trump for inciting the deadly Jan. 6 attack.
A Tuesday filing with the U.S. District Court for the District of Kansas takes a novel approach to that shared refrain: criticism of Trump directly from the mouth of de facto Republican Party leader and de jure Senate Minority Leader Mitch McConnell (R-Ky.).
“We don’t intend to try this case in full on Wednesday,” federal public defenders note in their detention memorandum. “But in evaluating the weight of the evidence, the Court should consider the statement of Senator Mitch McConnell explaining his vote in the impeachment trial.”
The filing offers a lengthy quote [emphasis in original]:
Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted about murdering the Vice President. They did this because they had been fed wild falsehoods by the most powerful man on Earth — because he was angry he’d lost an election.
Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty. The House accused the former President of, quote, ‘incitement.’ That is a specific term from the criminal law. Let me put that to the side for one moment and reiterate something I said weeks ago: There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their President.
Recall: McConnell, during a post-Trump impeachment trial speech, went on to insist he was opposed to the “the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated President kept shouting into the largest megaphone on planet Earth” after losing to then-candidate Joe Biden in Nov. 2020.
The Kentucky Republican said those “increasingly wild myths about a reverse landslide election that was being stolen” were instrumental in the process of Trump’s supporters being whipped into a furor on the day in question. All of McConnell’s verbiage is cited in the bail memo and then fashioned into an explicit legal argument.
“The Capitol Hill rioters were actively misled by ‘the voice of the State most presently speaking’; former President Donald Trump,” the document notes—citing precedent from a 1959 Supreme Court case involving civil liberties, bona fide entrapment and a state-based Un-American Activities Committee. “Trump told the assembled rabble what they must do; they followed his instructions. Then, he ratified their actions, cementing his symbiotic relationship with the rioters.”
The memo lucidly explains that opinion:
In Raley, the Supreme Court reversed the contempt convictions of three witnesses on similar grounds. The witnesses had been told by a state legislative “Un-American Activities Commission” before which they had been summoned that they had a right to rely on their privilege against self-incrimination. This advice was incorrect—state law in fact deprived them of the privilege by immunizing their testimony. The state thereafter prosecuted the witnesses for contempt. On review, the Supreme Court found “no suggestion that the Commission had any intent to deceive the appellants,” but held nonetheless that affirming the convictions “after the Commission had acted as it did would be to sanction the most indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State clearly had told him was available to him.” Pointing out that the witnesses had been subjected to “active misleading” by “the voice of the State most presently speaking” to them, the Court concluded that “[w]e cannot hold that the Due process clause permits convictions to be obtained under such circumstances.”
The defense argues that such reliance on Trump’s words, the so-called “voice of the State,” should preclude punishment.
“Convicting ‘a citizen for exercising a privilege which the State had clearly told him was available to him’ violates the Due Process Clause,” the memo reads. “The former President gave that permission and privilege to the assembled mob on January 6. Trump’s incitement and enablement of this insurrectionary riot weighs heavily against the weight of the evidence prong, because the mob was given explicit permission and encouragement by the former President to do what they did. The American head of state directed a specific action; the Due Process Clause says that those who obeyed him have a viable defense against criminal liability.”
A lengthy footnote identifies 10 separate portions from Trump’s speech immediately preceding the siege of the Capitol on the day in question in service of the defense’s argument that the 45th president blessed the ensuing violence.
The defense memo also takes note of Chrestman’s Proud Boys affiliation in several notable ways.
“It is an astounding thing to imagine storming the United States Capitol with sticks and flags and bear spray, arrayed against armed and highly trained law enforcement,” the defense muses. “Only someone who thought they had an official endorsement would even attempt such a thing. And a Proud Boy who had been paying attention would very much believe he did.”
As for why the Proud Boys might believe such a thing, the memo reiterates the Trump connection but doesn’t spare the institutional GOP or law enforcement. The memo, for instance, notes law enforcement attacked Black Lives Matter protesters but enabled Proud Boys who believed they had the “implicit approval of the state”:
They watched as their “pro-America, pro-capitalism and pro-Trump” rhetorical strategy “allowed the Proud Boys to gain entry into the Republican mainstream.” They watched as law enforcement attacked Black Lives Matter and anti-fascism protestors, but escorted Proud Boys and their allies to safety. They watched as their leader, Enrique Tarrio, was named Florida state director of Latinos for Trump. They watched the Trump campaign, “well aware of the organized participation of Proud Boys rallies merging into Trump events. They don’t care.” They watched when then-President Trump, given an opportunity to disavow the Proud Boys, instead told them to “stand back and stand by.” They understood that phrase as “a call to arms and preparedness. It suggests that these groups, who are eager to do violence in any case, have the implicit approval of the state.” Having seen enough, the Proud Boys (and many others who heard the same message) acted on January 6.
“Their calculations were wrong,” the filing continues. “The five weeks since January 6 have broken the fever dream.”
In service of the notion that Chrestman does not pose a realistic risk to the community, the filing piles on to the far-right street gang.
“The world is a much different place since January 6,” the memo notes. “The Proud Boys are enfeebled. President Trump is now former president Trump. And Mr. Chrestman has experienced the clarity of perspective sometimes imparted by a federal prosecution and associated incarceration.”
On Tuesday evening, Trump responded to McConnell. The statement attributed to Trump called McConnell a “dour, sullen, and unsmiling political hack.”
[image via U.S. Department of Justice]
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