On Entrapment, Instigation, and January 6

The mayhem at the U.S. Capitol on January 6, 2021 (Shannon Stapleton / Reuters)

There is a fair amount of confusion on the question of federal agents or others “instigating” January 6. To start with, there is a difference between the legal defense of entrapment and the fundamentally political question of who instigated political violence.

Entrapment is a really narrow legal defense. I’d recommend Andy McCarthy’s explainers here and here: “Entrapment is police enticing of a person to commit a crime that the person was not otherwise disposed to commit. Consequently, as a matter of law, there can be no entrapment if the accused (a) proposed or otherwise initiated the crime, or (b) was predisposed to commit the crime, even if the government proposed it.” Notice the “or.” It’s an affirmative defense, which is a lawyerly way of saying that after the government proves that you committed a criminal act with criminal intent, you — the defendant — have to prove not just that it wasn’t your idea but also that you would never have been predisposed to do this sort of thing. As Andy notes, it is really hard to prove, once you’ve committed the crime, that you’re not the sort of person who would ever commit that crime. That said, juries do sometimes sympathize with defendants who got talked into something and go beyond the strict legal definition.

There may well be some of the 700-plus defendants in January 6 cases who end up being able to prove entrapment, or to defend against a finding of criminal intent based on similar facts. Those are likely to be the most marginal cases: people who came to protest peaceably outside the Capitol, saw the doors open (or were told that they’d been opened by the Capitol Police, or actually saw them opened by the Capitol Police, as appears to have happened in some places), entered the building, stayed within the velvet ropes, didn’t assault anyone, didn’t do any property damage, and didn’t enter any part of the building where they would have been on notice that they were trespassing. Our adversarial system of criminal justice is designed to isolate and spotlight those cases.

But consider the halfway situation: where the crime is the government’s idea — instigated by government agents — but the defendant eagerly played along. Legally, that is still a criminal conviction. But politically, if the debate is about the danger posed by one political side — or one political idea, or one political argument — it makes a rather large difference whether or not that side actually came up with the idea rather than falling for a government setup.

The reason for that is that the whole point of trying to indict a political movement by the crimes of a small faction of its worst members is to argue, “these ideas are bad because they lead people to come up with violent plots.” The plot to kidnap Michigan governor Gretchen Whitmer is a textbook example. It was frequently cited, at the time, as proof of the danger of right-wing opposition to Whitmer’s COVID policies and those of others like her. It turned out, upon public scrutiny, that so many of the conspirators were federal agents that the idea to kidnap the governor was, for all practical purposes, the Justice Department’s idea. That’s cold comfort to the defendants, most of whom leaped at the opportunity. But if the public significance of the Whitmer plot was to prove that right-wing opposition to Whitmer leads to ideas about personally abducting the governor, the fact that the plot originated with federal agents is a significant obstacle to making that political case.

In the case of January 6, the story is different. True, we still do not know all the answers about the involvement of federal agents, federal informants, or left-wing agents provocateurs. But on the political question, we have copious evidence (as Kevin Williamson notes) from the words of many January 6 rioters themselves that they did, in fact, intend to use the power of a mob to disrupt and influence the counting of electoral votes, for the purpose of getting Trump reelected in spite of his loss of the official popular vote counts in a decisive number of states. No honest person really doubts this. Maybe — and we have scant evidence even now of this — there were some left-wing mischief-makers involved, but as I said at the time, that’s not the question; the question is who actually intended to use the presence of the mob in the Capitol to affect the outcome of the electoral count or prevent it from happening. And maybe — we don’t know all the facts on this yet, either — there were more federal agents involved than we know. It is not paranoia to wonder, given the common tactics of federal law enforcement in surveilling suspected political extremists. But the burden is heavy, and unmet by evidence, on the part of people claiming that the Oath Keepers and other aggressive promoters of direct action at the Capitol that day were actually entirely acting at the direction of the feds. That would not explain why so many of them came loaded for bear (literally, with bear spray, pepper spray, and other chemical agents).

Extraordinary claims require extraordinary evidence. The evidence thus far is that neither the January 6 rioters nor the federal agents were anywhere near well-organized enough to control a picnic, let alone a riot. Some people came with plans, but many just got fired up and did what they thought the situation demanded. The blame for the latter belongs, not to the FBI, but to Donald Trump.

The question of instigation is different from the legal question of entrapment, but that still does not make January 6 a “fed-surrection” or a “false flag” when the bulk of the people involved were, in fact, MAGA true believers. And neither are they “political prisoners” simply because the authorities have compiled evidence of them being MAGA true believers as a means of demonstrating that they meant their participation that day to accomplish the political purpose of getting Trump re-elected in spite of his loss of the official popular vote counts in a decisive number of states. That just makes them criminals with a political motivation.

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