Beryl Howell Takes an Early Swipe at the Trump Made-Me-Do-It Defense and Other Detention Standards

When DC Chief Judge Beryl Howell ordered Richard Barnett detained pending trial, the only record of her judgement — beyond her strong language at the detention hearing — was the order itself, including a paragraph about Barnett’s, “brazen conduct.” When she ordered Rachel Powell released to home detention, she released no opinion.

But when she ordered Proud Boy William Chrestman detained until trial, she wrote a 32-page opinion explaining her thinking. With regards to Chrestman — who threatened a cop, carried an axe-handle as weapon, and organized a cell of people who worked together to prevent police from expelling insurrectionists — Howell judged that his pre-trial detention wasn’t a close call: he poses a danger to the nation.

Defendant’s conduct on January 6 and blatant disregard for the law clearly show that he is a serious danger to the community and the nation, and that no condition or combination of conditions can be imposed that will ensure his compliance with the law pending trial in this matter.

But as one after another DC District judge struggles with the difficult pre-trial detention questions and just days after Judge Amit Mehta noted that some of these legal questions will pertain to a significant number of January 6 decisions, Howell used her decision on Chrestman to address three issues that have been and will continue to be litigated by insurrectionists:

  • Standards for review of magistrate decisions from other districts
  • The distinctions between different roles in the insurrection
  • The claim that Trump ordered or sanctioned insurrection

Magistrate decisions from other districts

As she did with a number of other defendants, after a magistrate in Kansas granted Chrestman pre-trial release, Judge Howell granted an emergency request from prosecutors staying that order for another review. And in at least one case where DC judges reviewed a magistrate’s decision (Dominic Pezzola), the defendant has tried to limit the scope of the review.

In most cases, January 6 defendants will have their cases initially reviewed by a magistrate local to their homes, only to be prosecuted in the DC District.

Perhaps to establish both the primacy and the scope of these District Court orders, in her opinion Howell reviews the requirements for granting a hearing on detention (both Jessica Watkins’ and Thomas Caldwell’s attorneys had argued their charged crimes did not merit a review).

As generally pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, a detention hearing must be held on the government’s motion when the charged offense involves:

1. “[A] crime of violence,” id. § 3142(f)(1)(A), which is defined broadly as an offense having as an element the attempted, threatened, or actual use of physical force against a person or property of another, or a felony offense that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense, id. § 3156(a)(4)(A)–(B);

2. “[A]n offense listed in section 2332b(g)(5)(B) for which a maximum term of imprisonment of 10 years or more is prescribed,” id. § 3142(f)(1)(A), which “list” includes “a violation of . . . [18 U.S.C. §] 1361 (relating to government property or contracts),” id. § 2332b(g)(5)(B)(i);4

3. “[A]ny felony that is not otherwise a crime of violence that involves . . . the possession or use of a firearm or destructive device . . . or any other dangerous weapon[,]” id. § 3142(f)(1)(E);

4. “[A] serious risk that such person will flee,” id. § 3142(f)(2)(A); or

5. “[A] serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror,” id. § 3142(f)(2)(B).

A subset of the types of offenses requiring a detention hearing triggers a rebuttable presumption “that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of the community if the judicial officer finds that there is probable cause to believe that the person committed” that subset of offenses. Id. § 3142(e)(3). As pertinent to charged offenses arising out of the January 6, 2021 assault on the Capitol, that subset of offenses includes “an offense listed in section 2332b(g)(5)(B) of title 18, United States Code, for which a maximum term of imprisonment of 10 years or more is prescribed.” Id. § 3142(e)(3)(C).

4 18 U.S.C. § 2332b(g)(5) provides a definition for “the term ‘Federal crime of terrorism,’” when the offense is “a violation of” an enumerated list of Federal offenses set out in § 2332b(g)(5)(i)–(iv) and the offense “is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct,” id. § 2332b(g)(5)(A). While individuals involved in the January 6, 2021 assault on the Capitol expressed publicly the intent to disrupt a government function in certifying the results of the 2020 Presidential Election and to coerce such disruption by breaching the Capitol, to date, to the knowledge of this Judge, no person charged in connection with the assault on the Capitol has been charged with a “Federal crime of terrorism,” under chapter 113B of title 18, United States Code, but only with separate, predicate enumerated offenses, such as violation of 18 U.S.C. § 1361 (relating to government property or contracts).

Howell then reaffirms that when conducting such reviews, District Court judges conduct a de novo review (Dominic Pezzola’s attorney, for example, asked the District judge for a more limited review).

[B]oth the BRA and the Federal Magistrates Act, 28 U.S.C. § 636, support the conclusion, reached by every circuit to have considered the question, that a district court reviews a magistrate judge’s release or detention order de novo.


First, the BRA vests the authority to review and ultimately to “determine[]” a motion for review of a pretrial release or detention order in a “judge of a court having original jurisdiction over the offense.” 18 U.S.C. § 3145. Even when reviewing an order issued under § 3142, then, the district court exercises its original jurisdiction over the case as a whole, not appellate jurisdiction over the magistrate judge’s release or detention order.

Thus in the Chrestman case and in the hundred or so detention motions that will come, Howell lays out, the DC District judge will — if the government requests a review under the available offenses — decide the detention question.

Distinctions between different roles in the insurrection

Howell then turns to the difficult question of presiding over the detention reviews for hundreds of defendants involved in an unprecedented crime. Before assessing the question with respect to Chrestman, she addresses the question more generally:

The BRA, of course, requires a reviewing court to assess the specific conduct of each defendant, but the varying results in these cases raise the natural question, given the undeniably traumatic events of January 6, of the standard against which a particular defendant’s actions on that day should be evaluated. Before evaluating the nature and circumstances of defendant’s specific conduct, then, consideration of the differentiating factors that warrant pretrial detention of certain defendants facing criminal liability for their participation in the mob and pretrial release of others is helpful.

She lays out the kind of things judges might consider (all but one of which happen to work against Chrestman, but which provide useful guidelines for others). This analysis covers three pages, but the questions she asks (I’ve changed the order slightly) are:

  • Was the defendant charged with misdemeanor or felony offenses?
  • Did the defendant remain on the Capitol grounds or breach the building?
  • Did the defendant engage in planning before arriving at the Capitol, for example by obtaining weapons or gear?
  • Did the defendant carry or use a dangerous weapon?
  • Did the defendant coordinate with other participants before, during, or after the riot?
  • Did the defendant assume a formal or de facto leadership role?
  • Did the defendant injure or attempt to injure others?
  • Did the defendant damage or attempt to damage federal property?
  • Did the defendant threaten federal officers or law enforcement?
  • Did the defendant specifically promote the disruption of the electoral vote?

These questions aren’t surprising. Similar questions (excepting the first) seem to guide the government’s charging decisions. Still, as Howell says explicitly, they offer a “useful framework” to help contextualize each defendant’s actions.

Using these guidelines, she assesses that Chrestman’s actions pose a particularly grave threat to the country.

The nature and circumstances of defendant’s offenses evince a clear disregard for the law, concerted and deliberate efforts to undermine law enforcement, and an apparent willingness to take coordinated, pre-planned, and egregious actions to achieve his unlawful aims, all of which indicate that he poses a danger to the community. This first factor weighs heavily in favor of detention.

Without relying on the framework of terrorism (though she describes Chrestman as “terrorizing elected officials”), Howell places the danger in Chrestman’s pre-planning and coordination to undermine government.

Defenses claiming to be following Trump’s orders

As I noted, in his bid for pre-trial release, Chrestman suggested that he believed he was operating with Trump’s approval.

To prefigure how those offenses relate to the likelihood of Mr. Chrestman succeeding on pretrial release, we must start long before January 6.

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. 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. They watched as their “pro-America, pro-capitalism and pro-Trump” rhetorical strategy “allowed the Proud Boys to gain entry into the Republican mainstream.”11 They watched as law enforcement attacked Black Lives Matter and anti-fascism protestors, but escorted Proud Boys and their allies to safety.12 They watched as their leader, Enrique Tarrio, was named Florida state director of Latinos for Trump.13 They watched the Trump campaign, “well aware of the organized participation of Proud Boys rallies merging into Trump events. They don’t care.”14 They watched when then-President Trump, given an opportunity to disavow the Proud Boys, instead told them to “stand back and stand by.”15 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.”16 Having seen enough, the Proud Boys (and many others who heard the same message)17 acted on January 6.

In the guise of addressing Chrestman’s claim that he has a viable defense, even in spite of the overwhelming evidence against him, Howell takes an early swipe at a defense many, if not most, defendants are offering: Trump invited or ordered the insurrectionists to take the illegal actions.

Howell admits she’s reviewing the particular form of the argument Chrestman presented before it has been sufficiently briefed (without also noting that one after another defendant is already trying some version of it).

This theory has not been fully briefed by the parties, and the question of former President Trump’s responsibility, legal, moral, or otherwise, for the events of January 6, 2021 is not before this Court.

Defendant presents this defense only for the limited purpose of counterbalancing the overwhelming weight of the evidence against him.

Nevertheless, Howell reviews the precedents Chrestman invokes to suggest that he might be excused for following Trump’s directions by distinguishing — first of all — between believing that a government official was describing the law accurately and, as happened here, believing that a government official could bless a “waiver of law.”

Nonetheless, in order to measure properly defendant’s potential privilege against liability against the government’s proffer, some exploration of the proposed due process defense is necessary.

Defendant invokes a novel iteration of a complete defense to criminal liability that arises when an individual criminally prosecuted for an offense reasonably relied on statements made by a government official charged with “interpreting, administering, or enforcing the law defining the offense” and those statements actively misled the individual to believe that his or her conduct was legal. United States v. Cox, 906 F.3d 1170, 1191 (10th Cir. 2018) (internal quotation marks and citations omitted) (outlining the elements of the defense). “The defense . . . is based on fundamental fairness concerns of the Due Process Clause,” United States v. Spires, 79 F.3d 464, 466 (5th Cir. 1996), and thus relies on an assessment of whether the challenged prosecution “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Patterson v. New York, 432 U.S. 197, 202 (1977) (internal quotation marks and citation omitted), because of the lack of notice and fairness to the charged defendant. The Supreme Court recognized this defense, sometimes called “entrapment by estoppel,” in three cases, Raley v. Ohio, 360 U.S. 423 (1959), Cox v. Louisiana, 379 U.S. 559 (1965), and United States v. Pennsylvania Industrial Chemical Corp. (“PICCO”), 411 U.S. 655 (1973). Examination of these decisions shows first, that entrapment by estoppel is a narrowly tailored defense, available in very limited circumstances, and second, that this defense does not excuse defendant’s conduct in the instant case.


[T]his trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob. [my emphasis]

Moreover, the instructions Trump purportedly gave cannot be deemed part of his job. Howell argues that under both the Take Care Clause and the Constitution, Trump cannot sanction illegal or unconstitutional acts.

No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.”


[A] President cannot, within the confines of his constitutional authority, prevent the constitutionally mandated certification of the results of a Presidential Election or encourage others to do so on his behalf, nor can he direct an assault on the coequal Legislative branch of government. Were a President to attempt to condone such conduct, he would act ultra vires and thus without the force of his constitutional authority.

This gets close to the argument I keep making, that a key step Trump took that day (and riled up the mob when it didn’t work) was to give another Constitutional officer, Mike Pence, an unconstitutional order. And I was surprised that Howell didn’t mention pardons, a means by which Trump, at least, has forgiven the illegal obstruction of justice done for his behalf. Similarly, I would expect more focus on the separation of powers.

Still, it’s a framework for responding to what already is a sea of defendants claiming they can’t be held accountable for their crimes because Donald Trump invited or ordered them to commit the crimes. And does so within a broader framework that may provide DC District judges some way to approach the detention challenges with some measure of consistency.

88 replies
  1. TMC says:

    In so many words, this sounds very much like their version of the Nuremberg defense. As I recall that didn’t work out so well for the defendants.

      • Desider says:

        Note the Supreme Court put a small but significant chip in QI last week, and there’s a related congressional vote next week. But yes, yours is a good example as relates to the “we thought we wuz doing right” defense.

        • bmaz says:

          Eh, not that much really. No standards were changed whatsoever, and the facts in Taylor were hideous. It does not change much, if anything. Maybe a future case will, and maybe the theory is now on the court’s radar, but only time will tell that, Taylor did not change much, if anything.

  2. Foamy Homie says:

    This is, as the (occasionally) curmudgeonly one pointed out the other day, the best blog in the world.
    Brilliantly out in front of the owned and otherwise obligated.
    You never stop crushing it.
    Thanks and keep doing it.

  3. Peterr says:

    The opening sentence of the ruling does not pull any punches (so to speak):

    Defendant William Chrestman, along with at least four co-conspirators, enthusiastically participated in the storming of the U.S.Capitol on January 6, 2021, with videoclips showing him brandishing an axe handle and donning tactical gear to confront, threaten, and impede the police and to encourage the mob in its assault on the constitutional ritual of confirming the results of the 2020 Presidential Election.

    And this is just a ruling about pre-trial detention. The words “enthusiastically participated” do not bode well for Chrestman if/when the case proceeds to trial. It’s one thing for the judge to say “There is sufficient evidence presented at this stage to suggest that the prosecution is capable of proving its case . . .” but Howell didn’t sit behind legal boilerplate. Instead, she noted that Chrestman was enthusiastic in his well-documented activities.

    His lawyer may be enthusiastically offering legal advice to Chrestman, strongly suggesting that their best bet is to try for a deal.

    • emptywheel says:

      Oh I don’t know. I’m not sure DOJ would offer him a deal, at least not for some time. And ultimately these are people they would consider filing seditious conspiracy charges against.

      • Peterr says:

        The DOJ may not offer a deal, but it looks to me like asking for a deal is about all Chrestman’s lawyer can do at this point.

      • pasha says:

        “ultimately these are people they would consider filing seditious conspiracy charges against.”

        it has bothered me from the first that none of the complaints and, especially, indictments brought charges under 18u.s.c. section 2383 (insurrection) or section 2384 (seditious conspiracy). as one who used to compile and index statutes, it seemed to me these charges were much more comprehensive and appropriate to the events of january sixth, and much more evocative of the gravity of this concerted attempt to use force to decertify the election. your comment gives me hope that charges will ultimately be amended to reflect the grave nature of the riot.

  4. CJ says:

    Tangential point, but can a POTUS even legitimately order a VPOTUS to do _anything_ at all? It’s decidedly unclear to me that one can really consider the relationship superior/subordinate when they’re co-elected and POTUS can’t remove VPOTUS….

    • rg says:

      I agree with your view. In fact, I was stunned at how frequently various media voices kept referring to Trump ordering HIS vice president to do as told.

    • bidrec says:

      Hannibal Hamlin was a cook in the Maine National Guard at the same time as he was vice president. Possibly Abraham Lincoln could have ordered him to make him some scrambled eggs should he, Lincoln, ever visit Maine.

    • Peterr says:

      Trump never let legitimacy get in the way of issuing orders. Ever.

      Beyond this flap with Pence, Trump spent four years issuing orders to Mitch McConnell, Kevin McCarthy, and others in Congress. McCarthy saluted every time, while McConnell kept his own counsel. If McConnell went along with any of it, it’s not because he was ordered to, but because he found it worth doing.

  5. yogarhythms says:

    “Howell argues that under both the Take Care Clause and the Constitution, Trump cannot sanction illegal or unconstitutional acts.” Jan 6th 2021 Defendants assert “Trump invited us”, “Trump loves us”, Like Ollie North says of Reagan “ He loves my ass”. A defendants self rationalization of criminal acts perpetrated upon the US Capitol and all present at the capitol on that day of governmental business as usual actualizes magical wish fulfillment not unlike the formers fantasies of his daughter. Beryl Howell calmly surrounds the Jan 6th 2021 defendants arguments with twigs and feathers strong enough to support the grossest Turkey argument falling from defendants counsel and proudly displaying the true colors for all to see in her loving courtroom nest.

  6. BobCon says:

    How high is the standard of proof of risk of failure to appear or danger to the community for detention to be approved?

    • Leoghann says:

      High enough to convince the judge. Some have a high bar for detention, some, a low one, as the arrestees’ variations in detention from their original jurisdictions attest.

  7. PeterS says:

    It occurs to me that the strength of the defense that the former president invited or ordered these people to commit their crimes becomes more obvious when the unspoken part of the defense is voiced: “Donald Trump encouraged my client to do what he did – and my client was stupid enough to think that meant something”.

    (^^^ not a legal analysis)

    • emptywheel says:

      Judges ARE speaking it though. Even here Howell writes, “Setting aside the question of whether such a belief was reasonable or rational, as the entrapment by estoppel defense requires.”

      • PeterS says:

        Yes, and I assume the attorneys know the defense won’t fly but are dangling the tacit plea for leniency (“my client is a gullible fool”).

        Or are some attorneys being more explicit, e.g. “my client has only high school education”?

        I confess to a touch of sympathy for any who only, repeat only, trespassed. Dumb is not as bad as malevolent and if the guy at the top gets off scot-free, consider me galled.

  8. SteveL says:

    Great stuff, but with one apparent typo:
    “particular for” should, it appears, be “particularl form”

  9. What Constitution? says:

    Certainly the president does not have the constitutional authority to instruct the vice president to violate his constitutional obligation to preside over the counting of the electoral votes as described. But there’s another way the president acted on that day which even more clearly and directly seems, to me, to apply in the situation presented by a Proud Boy claiming he should not be held in custody and cannot be convicted of a crime because the president stood before the mob that had been whipped into a frenzy all day by recitations of factually unsupportable lies and suppositions and then explicitly announced that:

    “the Constitution says you have to protect our country and you have to protect our Constitution, and you can’t vote on fraud. And fraud breaks up
    everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules.”

    The Proud Boys are trying to turn that sort of exhortation into some sort of “get out of jail free card”. Judge Howell’s ruling could not be directed to a more pristine example of the type of the thing a president does not get to do for the benefit of his personal instruction to his most vehement supporters: an utterly false assurance that because he believes, he alleges, he speculates, he lies that things have not gone his way because of “fraud” — fraud which is his burden of proof to establish by competent evidence to maintain such a charge and which he has gone 0-for-60 in judicial proceedings before continuing to instruct his supporters — then he gets to announce to his followers that they should “fight” and he’ll “be there with them” and when they do, “you’re allowed to go by very different rules” which apparently include ignoring the law, attacking the Capitol and everything else these people did on that day.

    I’m glad to see the clarity of Judge Howell’s attention to this issue. I think it goes a long way to destroying the attackers’ “I vas only following ze orders” scumbag defense, which is laudable. It also should go a long way to meet the concerns of those who are trying to envision Trump himself asserting a criminal defense that “he can’t be convicted because he, in his own warped mind, honestly believes he was defrauded” — the fact is, whether he believes he was defrauded or not does not mean he gets to suggest he believes proof of fraud is a not necessary predicate for a president to purport to set aside the entirety of the criminal law to serve his own personal interest.

    Or if it is a statement he gets to make in his defense, it is a statement that goes only to his mental state as wholly unbalanced and insane — I’ll take commitment to a mental institution in lieu of confinement to prison, just so long as this menace is removed from political discourse.

    • FL Resister says:

      Here, here. I agree with everything including and especially this:
      ” — the fact is, whether he believes he was defrauded or not does not mean he gets to suggest he believes proof of fraud is a not necessary predicate for a president to purport to set aside the entirety of the criminal law to serve his own personal interest.”

      With CPAC this weekend, they have reached a level of absurdity that should have been predictable considering the trajectory that Trump and the Republican Party have been on.
      But as someone else said, even though you expect things in Trumpworld to be off the rails, when you witness it unfolding, the shock value is still there.

      Lots of weird stuff going on at CPAC as usual. the wheeling in of the Golden Calf meets Pep Boy’ statue was weird enough until somebody pointed out their fascist glyph stage
      Gilfoyle’s entrance, performing gyrations as sparklers went off and her name was flashed in big letters across the stage, was cringe-inducing. I don’t know how much farther off the deep end the Republican Party can still go.

      In the meantime, I am glad that Judge Howell has her mind on more serious matters and so does Marcy Wheeler, to all of our benefit.

      • Tom says:

        “… how much farther off the deep end …” Yes, any day now I expect to hear that the Republican Party platform for the 2024 Presidential election will include a measure calling for the abolition of the opposable thumb, which as we all know is just another devious socialist plot of the Radical Democratic Left. After all, there’s nothing in the Constitution that says American citizens need to have opposable thumbs. Besides, they just make it easier to operate voting machines.

      • ducktree says:

        To my eye it resembled the Bob’s Big Boy mascot but holding a star tipped wand in place of the hamberder on a plate. That wand is more mayonnaise than magic.

        But that’s just me…

  10. Manwen says:

    Before reading this ruling I was unaware that the insurgents had reached the tunnels under the Capitol.. Three times, Judge Howell mentions this, notably:

    “Law enforcement attempted to lower metal barriers in the tunnels underneath
    the Capitol to seal off areas inside the building from the mob. Id. ¶ 34. Defendant led his coconspirators in deliberate efforts to prevent Capitol Police from closing the barriers. He can be seen in surveillance footage using his axe handle to obstruct one of the barriers, while all but one of his co-conspirators are seen using their arms, a chair, and a podium to keep other barriers from closing.”

    Many reports, including the FBI warning from January 5, mention that maps of the Capitol were shared in advance, including the tunnel locations. Media reports indicate some insurrectionists thought that Congressional members were in the tunnels. One insurgent said that they should seal the tunnels and gas them or words to that effect. The effort to access the tunnels reflects how dangerously close to a mass casualty event this could have been or, perhaps, the reason that members were not escorted to the tunnels and instead became trapped together in close quarters for hours. I could not quite figure why security did not use the tunnels. There may be other explanations, but this is certainly news to me. We might learn more about the circumstances surrounding the tunnels as the investigation unfolds. I hope we learn more now that we know a conspiring group fought with police to access them.

    • emptywheel says:

      Yes. I have noted that they specifically kept the tunnels open before, but the significance has not gotten a lot of attention. Note the other reference to tunnels was from the Oath Keepers (someone speaking to Jessica WAtkins, anyway). But they were speaking back and forth.

      • klynn says:

        One of those tunnels is accessible from the Library of Congress. Wonder if some took a short cut through there?

    • harpie says:

      Yeah, that Facebook message was, [I think, to CALDWELL]:

      “All members are in the tunnels under capital seal them in. Turn on gas”.

      • dadidoc1 says:

        I wonder if the chemical agent sprayed on Officer Sicknick is the same agent they were planning on using to “gas”
        members of Congress.

        • PeterS says:

          A good question. I too am interested in the source of the gas, and also how the relevant tunnels were going to be sealed. But if I asked I’d be accused of defending thugs as opposed to seeking, you know, facts.

    • PeterS says:

      “Media reports indicate some insurrectionists thought that Congressional members were in the tunnels”. Is it known if that thought was accurate at the time it was expressed? (Obviously NOTHING excuses the gassing sentiment. )

      In case others knew as little as I did, I learned more about the tunnels here:

  11. TimH says:

    If your boss exhorts employees to rob a bank, this doesn’t remove liability from the ones that go ahead and do that.

    So people breaking the law can’t claim that they are protected; they’re just claiming that the Donald was head of the conspiracy.

    • Mitch Neher says:

      Entrapment by estoppel, as a legal defense, sounds suspiciously like an unforced confession of premeditated criminal intent.

      Your Honor, I never would’ve smoked any of those marijuana cigarettes that I brought with me had Officer Friendly not been singing that old Styx song, “Light Up, Everybody.”

      How was I supposed to know he was really just one of The Village People??

      • Eureka says:


        Seems as good a segue as any to note that we’ve failed to appreciate the broader success of Maria Butina’s nonsensical gun-gal operation on American politics. Culturally, we’ve focused more — most — on her ubiquitous photos with and access to GOP men than on other aspects (or entailments) of the modeling.

        Perhaps more than anyone (time, places/spaces being central to this story) she popularized the ‘women with guns get GOP fame [adulation, too!]’ notion, and we’ve memes-alive like K. Bennett, M.T. Greene, and L. Boebert for which to thank her and her helpers.

        My heart is human, my blood is boiling, my brain IBM shit for algos

        One might even say that Butina situated herself within a deep discography, plucked out a promising neglected single, and accelerated its fortunes.

        • Mitch Neher says:

          If only guns really were Ladies, then . . .

          . . . when she’s with them they’re smiling
          Giving them all her love
          Her hands build them up when they’re sinking
          Touch them and their troubles all fade
          Lady, from the moment they saw you
          Standing all alone
          You gave all their love that he needed
          So shy, like a child who has grown??

        • Mitch Neher says:

          Oh no! I forgot the big reveal at the end of the tune. Mr. Roboto’s secret identity is Kilroy.

          That can’t be a coincidence.

          • Eureka says:

            Send any-gendered Roboto to Philadelphia; the city that birthed Gritty will take care of the matter. I’ve heard that Bad Things Happen to robots there.

            Also, new rule: invocation of Lady ballads will require a Change of Artist to Kenny Rogers or someone similarly more qualified and palatable. True, these are the waters we tread with Styx but I have never hit STOP so fast as when reminding myself of the tune that goes w/ the cited lyrics. [And after all that, Styx broke up because Dennis DeYoung wanted moar ballads upon producing Killroy Was Here.]

          • MissingGeorgeCarlin says:

            I love EW! Thanks to all for their hard work and comments. To go a little off topic:

            Styx had a few catchy tunes but my best memory of them was in the mid-80s at the Hollywood Sportatorium in S. FL….as they left the stage and RUSH came out.

            We left our cheap seats and snuck onto the floor. By the end of the show, I was right under Geddy Lee. When they came back out for the encore and played the first few notes of ‘Tom Sawyer’, the crowd pushed forward and I began to get crushed against the stage.

            A big security guy lifted my 160 pound high school sophomore body and threw me on top of the crowd. I ended up on the shoulders of another man (not where I wanted to be at all!). As I apologized to him, he said “Never mind. Grab the flag.”

            So I spent the rest of the RUSH show on a strange man’s shoulders holding one side of a Canadian flag…so close to Geddy Lee, I could almost reach out and touch him!

  12. joel fisher says:

    Except for that sadly accurate comment about the qualified immunity of the police, I think this is good news. The betrayal of the Capitol attackers by Trump discloses some astonishing new real estate: Trumpier than Trump. In his previous life the former guy could and did destroy any GOP candidate, official, or media type for engaging in the crime of insufficient worship and/or criticism. He is now confronted by a gang of 200+ defendants (I still want to know why this number is not 800+) who got jobbed and are increasingly having to pay real money and real time for their loyalty. Here’s the best part: I think they are beyond the power and reach of criticism by Trump. It seems that all they have is what amounts to a Trump betrayal defense: entrapment by estoppel. The noise of this defense has not really gotten into wide circulation, but it will. Whether they and, perhaps others, can go beyond “Trump betrayed us (them)” and into criticism of other areas of Trump’s nightmarish behavior is an open question, but they certainly have the power to shout out, “Trump is a disloyal so and so” and get away with it.

  13. bmaz says:

    “Entrapment by estoppel”. Lol. This is rich. Also, not really a thing. Entrapment alone basically no longer exists, much less entrapment by estoppel. That is Sid Powell level nonsense.

    • joel fisher says:

      Hey, I was just quoting the Judge. I didn’t even know it was a thing–as often happens–until I read EW a couple of hours ago. I wasn’t deeply invested in it; great, I get it, it’s not a thing. But, even as a mostly non-thing isn’t there a possibility that the Judge will allow evidence to come before the jury? This language says no: “entrapment by estoppel is a narrowly tailored defense, available in very limited circumstances, and second, that this defense does not excuse defendant’s conduct in the instant case.” OTOH, this language says the door isn’t completely closed, “entrapment by estoppel defense is likely to fail.” IDC really, as long as the defendants and their lawyers yell “betrayal by Trump” loud enough for the world–especially Trump World–to hear I’ll be happy either way.

        • emptywheel says:

          It is a step more formal than, “I was so delusional Trump made me do it.” So it doesn’t have to be a thing for Howell to put some language about how the Trump made me do it defense won’t work.

          • bmaz says:

            Meh, it is still in the context of a detention determination. This bunk is going nowhere. Howell should not have let it see the light of day. It is just garbage.

    • PhoneInducedPinkEye says:

      Great, he’s got a publicist. “Chansley, also known by his stage name Jake Angelli…”.

      You watch, he will be on the NYT opinion pages in a couple years, and then an analyst on fox or cbs.

    • Ginevra diBenci says:

      Jenny, according to your Newsweek link, Mr. Shaman argues he was “one of millions tricked” by the 45th president. In other words, he joined the Trump cult. Then he got taken. Now he wants to put himself on the “victim” side, different from the perpetrators. This reminds me of how the NXIUM cult disintegrated when federal prosecutors got involved; some in the upper echelon managed to evade arrest by portraying their involvement as involuntary, even brainwashed, and themselves as victims. In an ultimate irony, NXIUM leader Keith Raniere, in his heyday a vocal Trump critic, recently appealed to their shared persecution in a bid for a pardon. (No dice.) How is it that adults join movements nominally founded on personal freedom and responsibility, only to plead a total loss of free will when things break bad?

    • MissingGeorgeCarlin says:

      In a perfect world, the Q-Anon “Shaman” and DJT (and maybe even DJT Jr.) would all share a prison cell.

      Imagine the laughs! Maybe it would be like the Richard Pryor and Gene Wilder prison film “Stir Crazy”.

    • P J Evans says:

      Has he not yet noticed that he was one of those who bought those lies, hook, line, and poisoned sinker? And that he was involved in an insurrection to overturn a valid election?

  14. bidrec says:

    I was in the service and I do not want to defend Chrestman but to explain that there is an environment where his thinking is not totally nuts. He is enlisted taking direction from a superior.

    Yeoman Radford asserted he was ordered to pilfer documentation. ‘Pilfer’ is misspelled in the link:
    Said Yeoman Radford later, the suggestion of overzealousness “sticks in my craw.”

    “…to date, to the knowledge of this Judge, no person charged in connection with the assault on the Capitol has been charged with a “Federal crime of terrorism,…” pdf p8 Good thing, because there is no such thing as a white terrorist. I worked for an airline. The FAA mandates security training and there is discussion of various terrorist groups. There is no mention of White Christian terrorists like Baader Meinhof or the Red Brigade. They’re all brown.

    I am not a JAG but there is a sense of enlisted exceptionalism from The Soldier’s and Sailor’s Civil Relief Act. So, when I was in the Navy it was not illegal to be a “three state violator”, i.e., to have a driver’s license from one state, registration from a second and insurance from a third. Also, one could drive a car with a foreign registration and license plate for up to 180 days in the case of an “inter-theater transfer”. If you were transferred from Europe to the states with your car for six months of training and you had onward orders to West Pac you were fine. This was often in conflict with state law.

    The capitol riot suggested that the insurgents thought that they were involved in a sort of ‘dungaree liberty’ and thence there would be no charges, ” ‘dungaree liberty’, an old naval tradition in which sailors go ashore and bust up an offending liberty port while officers look the other way. ”

    Idiot officers issuing idiotic orders is a common theme in literature: No Time For Sargents by Mac Hyman, The Caine Mutiny by Herman Wouk, in non fiction The Arnheiter Affair by Neil Sheehan, etc.,etc, forever. See also Kurt Vonnegut who said that if the only raincoat he could buy had epaulets he would cut them off. You still are expected to follow orders.

    • J R in WV says:

      When you say “You still are expected to follow orders.” this is true, but the orders must be legal orders. Destroying a port on liberty would NOT be a legal order, nor would be attacking non-violent persons with lethal weapons be a legal order.

      Of course, an E2 would have difficulty being sure an order was illegal if it were a borderline case, but if it was to harm someone going about their assigned duties, that would be an open-and-shut case.

      • bidrec says:

        Sentries shoot people as a matter of course, just for being in the wrong place. In the context of the military shooting happens and orders to shoot happen. The insurgents were nostalgic for this time in their life. I think many ‘deplorables’ have a deep fear of not mattering.

          • bidrec says:

            I did an analysis of social isolation and “Trumpness” for the 2016 election based on airport/county. Here is what I found: All counties with a hub airport went for Clinton with the exception of Maricopa county which is Phoenix. About 97% of EAS airports went for Trump. EAS is Essential Air Services. These are subsidized by the federal government without which they would not exist. Those EAS airports that went for Clinton might not be isolated depending on your perspective. Hancock County, Maine went for Clinton. Bar Harbor is in some respects a summer suburb of Philadelphia and New York. Clinton County, NY is served by the Plattsburgh airport. It also serves Montreal and if necessary you can toggle its website to French.

            • bmaz says:

              Maricopa County is absolutely huge. As in bigger than several states. It is NOT just Phoenix. Phoenix, itself, is fairly blue. It also has one of the remaining large airports, Sky Harbor, smack in the middle of it the main city. Not sure the situation lies within your analysis theory.

              • bidrec says:

                My theory is the ‘hubbier’ you are the bluer you are so my assumption is that the farther from the airport you live in Maricopa County the redder you are. I believe Georgia voted in two Democratic senators because it was effectively overwhelmed by Hartsfield. Cincinnati, a former hub, is blue but its airport is in Kenton County Kentucky which is red but I bet more Cincinnati residents use the airport than Kenton County residents.

                • P J Evans says:

                  Conservative people tend to travel less outside the US, and often shorter distances inside. It may be related to politics, but not in a cause/effect way – more likely a frame of mind that prefers to avoid “new”.

            • Leoghann says:

              All these correlations are fun on a rainy afternoon, when there’s absolutely nothing left to do, and even the dog won’t go outside. But I hope you’re being ironic in suggesting that the recent Georgia runoff votes went the way they did because Atlanta was “overwhelmed” by Hartsfield. The logical threads of your research piece are already stretched to the breaking point by your work-arounds for Hancock County, Maine-Pennsylvania. Not only is bmaz right about you not doing your homework on Maricopa County, but if you hadn’t been stretching so hard to make your correlation work, DFW Airport would have thrown you into spasms. You can’t get much “hubbier” than DFW, yet the county line between two very urban counties runs right through the middle of it. On the east side, Dallas County went blue in both 2016 and 2020. On the west side, Tarrant County (not suburban, Fort Worth & Arlington) went red in both elections. Yet I see no note of that in your project results.

              “The devil made me do it” didn’t work for Flip Wilson, and if Judge Howell won’t accept “the defeated President made me do it,” I doubt she’ll go for “the airport made me do it” either.

              • bidrec says:

                There are gradations to correlations. There are 22 hub airports including three cargo hubs. Phoenix was the only one that went red. 21 of 22 is actually considered a pretty high correlation. If we split DFW between Dallas and Cow Town then it is 20 and a half of 22 which is still pretty high. I mentioned Hancock County as an example that proves the rule. It is isolated but has an urban component which pulls it blue. There used to be an express train from Grand Central to Ellsworth, ME, before air conditioning was invented.
                97% of AES served comunities is also a high correlation. AES list is here:
                “Seeing no note” of something in a 100 word comment is a strange criticism.

                • P J Evans says:

                  It’s still more statistical artifact than reality. Hubs tend to be in cities, and many cities vote bluer than the areas around them.

                  • bidrec says:

                    “and many cities vote bluer than the areas around them.” That is the point. And Republicans direct their misinformation campaigns where voters are not exposed to anyone but Fox and Sinclair.

                  • bidrec says:

                    The electoral college “conflates”. That is why we are in this mess in the first place.

                    • bmaz says:

                      Oh, now you are on to the EC huh? And you don’t know what you are talking about as to Phoenix. You are the one doing the conflating.

                  • bidrec says:

                    From for 2016:
                    “Maricopa County
                    100% Reporting
                    R D. Trump 49.1% 590,465
                    D H. Clinton 45.7% 549,040
                    L G. Johnson 4.1% 48,732
                    G J. Stein 1.1% 13,697”

            • skua says:

              I’m not clear that social isolation decreases as air travel increases. The correlation, from multi-generational families living in villages with very long-term neighbors and relatives to the modern geographically-mobile nuclear family, would seem to go in the other direction.

              • bidrec says:

                I am suggesting that social isolation increases as air travel increases. There is no such thing as a whistle stop for a commercial airplane.

        • MissingGeorgeCarlin says:

          I think you’ve hit on something there. This insane attack is chock full of white men in the 50s-70s… prime time for the proverbial ‘mid-life crisis’.

          If you were checked out, living in “La-La Land” that is Q /Fox/Limbaugh/Alex Jones/etc…. you might jump as a chance to be ‘relevant’.

          A friend of a friend knows some of the Q people and I look at their FBs pages in abject horror at the stupidity. It’s a sick obsession of mine to see what ridiculous garbage they will say next.

          I kid you not….”time travel” as an explanation of DJT’s recent actions was met w/comments like “I was thinking the same thing.”

          I weep for this fading Republic. If you had told me about this 5 years ago, I would called for the men with butterfly nets to come take you away.

  15. Lady4Real says:

    I would think their “Trump made me do it” defense would fall on deaf ears owing to the fact that the Congress is a coequal branch of government, therefore, trump cannot ‘invite’ people to invade the Citadel of Democracy due to that specific fact. Even as Commander in Chief, he is out of bounds (so to speak) in ordering civilians to ‘charge’ the Capital.

  16. gmoke says:

    “No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law.”

    Richard Nixon: “Well, when the president does it … that means that it is not illegal.”

    Methinks this disagreement requires to be relitigated publicly. Again.

  17. pseudonymous in nc says:

    The ultra vires analysis is really interesting. Article III courts decide all the time whether something is within the constitutional authority of the president / executive branch, though it’s normally on much narrower grounds than, say, ordering the VP to do something unconstitutional and then encouraging a mob to teach him and Congress a lesson.

    Judge Howell just says that if the person holding the office of the presidency tells people to break some laws, it doesn’t carry presidential authority because the president is bound by the oath of office to the Take Care clause. It’s just a person saying things. Whether acting outside the oath is subject to impeachment, removal and disqualification is left to Congress; whether inciting an insurrectionist mob is a criminal act is left till later.

  18. Badger Robert says:

    These defendants do not a Presidential authority defense. But what about the people that muffled the warnings and disabled the response? Are any of those people going to claim the former President requested me to delay the VP in performing his non discretionary duty?

  19. Badger Robert says:

    And what about the people who helped promote the gathering of the crowd and the financing of the transportation? Are they going to claim the former President was part of what seems to have been a conspiracy to overwhelm LE. bmaz previously posted the standards. Will other alleged perpetrators claim that the former President was part of their conspiracy?

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