Last week, an Ohio man was convicted for his role in the Jan. 6 attack on the U.S. Capitol. His defense at trial? Donald Trump made him do it.
The jury rejected Dustin Thompson’s argument that he should be acquitted because he was simply following orders from the then-president, returning guilty verdicts on all six offenses Thompson was charged with, including obstruction of an official proceeding, a 20-year felony. Thompson’s conviction should signal to the other 700-plus defendants charged in the attack that the “Trump-made-me-do it” defense is a loser.
The jury rejected Dustin Thompson’s argument that he should be acquitted because he was simply following orders from the then-president.
But importantly, rejection of this defense does not in any way exonerate Trump. In fact, the proceeding further demonstrated just how dangerous Trump’s disinformation can be.
During the trial, Thompson testified that after losing his job as an exterminator early in the pandemic, he had fallen down a “rabbit hole” of election disinformation. In blaming Trump for Thompson’s conduct, his lawyer argued that the former president had engaged in a “sinister” plot to encourage Thompson and other supporters to “do his dirty work.” During his opening statement, attorney Samuel Shamansky told jurors that Trump had spread lies and used “his position to authorize this assault.”
But a person is not exonerated from a crime just because someone else told him to do it. When a person hires a hitman to kill someone, the killer can’t simply blame the person who hired him and expect to avoid liability. Even members of the military have a duty to disobey an unlawful order.
Under certain limited circumstances, the law recognizes situations where a defendant’s will is overcome by coercion from another person. The defense of duress, for example, will excuse a defendant’s crime, but only if the person applying the pressure specifically commands the defendant to commit his crime under threat of death or great bodily harm, and the defendant had no reasonable alternative. The classic example is a bank robber who holds a gun to the head of an innocent driver and demands that the driver help the robber flee the scene.
Here, when Trump famously urged his supporters at the Ellipse rally on Jan. 6 to “walk down to the Capitol,” Thompson was under no threat of death. He could have chosen a reasonable alternative to rioting, such as protesting peacefully or walking away. As one juror told a reporter after the verdict, “Everyone agrees that Donald Trump is culpable as an overall narrative. Lots of people were there and then went home. Dustin Thompson did not."
But that doesn’t mean we should ignore Trump’s words or consider them irrelevant to the attack. As Shamansky argued, his client was vulnerable to Trump's unsubstantiated claims of election fraud. He described Thompson as a “pawn” and Trump as a “gangster” who abused his power to manipulate supporters. “The vulnerable are seduced by the strong,” Shamansky said, “and that's what happened here.”
Judge Reggie B. Walton, who presided over the trial, also had harsh words for Trump after the verdict. “I think our democracy is in trouble,” Walton said, “because unfortunately we have charlatans like our former president who, in my view, doesn’t care about democracy but only about power.”
Although the rioters are responsible for their own actions, it’s hard to believe the attack would have occurred without Trump’s efforts. He engaged in a monthslong campaign to convince the public that the voting was rigged, starting even before the election was held. He pounded his "Stop the Steal" slogan on social media. He posted a tweet calling people to Washington for a rally on Jan. 6, the day the vote would be certified: “Be there. Will be wild!” At the rally, he urged people to “fight like hell” or they wouldn’t have a country anymore.
If Trump was the person who lit the match, then why has he not been charged yet with inciting an insurrection? Such a charge would be risky because of First Amendment protections. Politicians frequently urge their supporters to “fight” for what they believe in. It is hard to imagine that the Department of Justice would indict a former president based on an untested legal theory. Unless DOJ uncovers evidence that links Trump to the planning of the Capitol attack, his role in the riot is unlikely to serve as the basis for charges against him.
In fact, the riot may be a distraction from more viable criminal charges — conspiracy to defraud the United States and conspiracy to obstruct an official proceeding. Each of those crimes could be proven without tying Trump to the conduct of the rioters. The evidence for such charges would be Trump’s public statements to pressure Mike Pence to abuse his power as vice president to overturn the election results. Prosecutors would also need to prove that Trump knew there was no actual election fraud. While proving a negative can be difficult, evidence of Trump's knowledge continues to mount.
But even if Trump is not legally responsible for the acts of the rioters, his complicity still matters. The Jan. 6 attack illustrated in stark terms the power of a dynamic figure to inspire others to engage in violent extremism.
When deciding whether to charge Trump criminally, DOJ must consider the divisive impact a criminal indictment would have on our country. Criminal charges against Trump could elicit a violent response from his supporters. Dustin Thompson’s case shows that people are willing to attack law enforcement officers and other government officials for their leader.
But, if Trump is not held accountable for his conduct, then others will be emboldened to follow suit. If left unchecked, over-zealous politicians will continue to use disinformation to manipulate people to become their pawns. In the hands of more sophisticated political operatives, a similar plot to undermine an election could succeed.
The Thompson case shows us why charging Trump would be dangerous. It also shows us why not charging him would be unthinkable.