New right-wing domestic terrorism defense: The president made me do it

Is the ideology of Trumpism inspiring right-wing domestic terrorism — and providing the surviving terrorists with a legal strategy for staying out of prison?

It’s a reasonable question considering the recent sentencing hearing in United States v. Cesar Sayoc in Manhattan and a statement just put out by the family of the El Paso shooting suspect.

Last October, Sayoc mailed crudely built explosive devices to critics of President Trump, including former President Obama and former Vice President Joe Biden. None of the bombs exploded, the FBI caught Sayoc and he pled guilty to acts of domestic terrorism.

Sayoc lived out of a van plastered with stickers and photographs that applauded Trump and lambasted his critics. In seeking a lenient sentence, Sayoc’s defense attorneys argued that Sayoc, “found life” in Trump’s books and presidential campaign and became convinced that the president’s critics were his enemies.

“We believe that the President’s rhetoric contributed to Mr. Sayoc’s behavior in this offense,” said Sayoc’s defense lawyer Ian Marcus Amelkin.

In other words, it’s a “the president made me do it” defense strategy.

The alleged manifesto of the El Paso shooting suspect, Patrick Crusius, refers in Trump-like language to a Hispanic “invasion” of Texas and the need to deter immigration with severe measures. His family just hinted at a similar defense strategy to Sayoc’s in a statement, although it may focus more on Trumpian ideology.

 “Patrick’s actions were apparently influenced and informed by people we do not know, and from ideas and beliefs that we do not accept or condone, in any way,” according to the statement.

At the Cesar Sayoc sentencing hearing the judge acknowledged a “correlation” between Sayoc’s beliefs and Trump’s rhetoric. But he found that Sayoc’s attorneys had not established a direct causal connection, i.e., but for Trump’s rhetoric Sayoc would not have mailed the bombs. The judge gave Sayoc a relatively lenient sentence of 20 years on the ground that Sayoc did not intend to hurt anyone. 

If the Crusius attorneys assert a “Sayoc defense,” perhaps as part of an insanity plea, Trump has given them a lot to work with. As David Schanzer, the director of the Triangle Center on Terrorism and Homeland Security, points out, “individuals often move from being a passive supporter of a cause to a mobilized killer when their political grievances are amplified, and their enemies are dehumanized.”

Trump is a nationwide market maker in grievances and the demonization of “alien” others. As a presidential candidate and then president he used the world’s most powerful amplifier array to launch attacks on the basis of racial characteristics and tropes against the first black president of the United States, a Muslim Gold Star mother, a Mexican-American federal judge, the congresswomen of color he dubbed “the squad,” undocumented immigrants, — well, let’s just say it’s a long list.

It is true that Trump doesn’t expressly call for violence. But at a rally in May in Florida, during which Trump described an “invasion” by undocumented immigrants, he asked the crowd, “but how do you stop these people from crossing the border?” An audience member called out, “shoot them.” Trump laughed and said, “You can’t. There’s no — That’s only in the Panhandle [of Florida] you can get away with that statement.” With his presidential mega-amplifier, he doesn’t have to be explicit. All he needs is a wink, a nod or a smirk.

But a right-wing domestic terrorism defendant who asserts an insanity defense based on Trump’s rhetoric will still have to establish in many jurisdictions that the president’s words in fact caused his violent acts. That likely would require psychiatric testimony.

It’s a heavy burden but psychiatric testimony helped John Hinckley convince a judge that he was not guilty by reason of insanity when he shot President Reagan allegedly to impress actress Jodie Foster. Such testimony could likewise convince a court or a jury that a right-wing domestic terrorist was influenced by the president to commit horrific acts and render a verdict of acquittal or not guilty by reason of insanity.

Welcome to the new world of the right-wing domestic terrorism defense where the terrorists hold the president responsible for their terrorism. 

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.