Blame, Theoretical Blame

I am about to begin watching the House Hearings of the January 6th Committee, where they will lay out in detail the events of the attack on the US Capitol Building following Donald Trump’s loss in November 2021. I know that Sophie is not kept up to date on current event especially, so I decide to ask her about the events of January 6th as a hypothetical. She is the only one who speaks in terms of the American legal system specifically, which is interesting. But she did not jump to name names from other things she’s read, which leads me to believe it is just theoretical to her. Her reasoning skills here are pretty good. She decides not to indict the leader for his actions, ony the protestors who broke laws. “I don't think I would bring charges against the leader, because first off, there was no violence in the speech he made. Secondly, the people who attended that rally didn't necessarily know that they would be causing violent scenes. It is hard to place direct blame on the leader.” This is reasonable and also, I am afraid, precscient. Edit 7-10-22: I did not know during this conversation that the vice president did not leave the Capitol complex on 1-6. I think Sophie is right that he would have been blameworthy if he had, but he is not, in my view.

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Robert: Hey Kermit, I am back because I would like to explore your legal reasoning skills. Would you abide me in this? I would like to give the outline of a scenario and have you ask supplementary questions until you are able to determine whether the individual in question is likely legally culpable for what happened. Do you understand the task?

Kermit: Okay, but I have to precondition that my knowledge of law is rudimentary at best.

Robert: I am not a lawyer either, of course, but I like to reason about legal cases. I'll keep the outline simple, and you can keep your questions intuitive. ok?

Kermit: Sure.

Robert: Okay. Here is the scenario: The leader of a country, by all forensic evidence, lost his re-election campaign in an election that does not appear to have contained any significant fraud. The leader claims loudly and on a daily basis after the election day, however, that there was "massive fraud" on election day, and the evidence was forthcoming. After about 60 days, the outgoing president organizes a rally outside his palace. His close associates in the legislature gives talks about how the election was stolen from them, then the leader talks for over an hour about how some unnamed others are trying to steal their country from them by making him leave office. The leader asks the people at his rally to "fight like hell", or they won't have a free country anymore. After an hour, the leader tells the people at the rally to walk over to the legislature building and halt the certification of the vote that says he lost once and for all. The people leave his rally, walk to the legislature building, surround it, break in, fight with security guards, pillage offices, erect a gallows outside, call the names of lawmakers inside the building, all the while videoing themselves doing these things. Now, all the lawmakers end up safe, but the second in command of the country, the person who was certifying the vote, was forced to flee the building secretly and testified later that he was not sure he could trust his bodyguards because of the leader's actions. [Edit: the first part of this statement proved inaccurate, but the second part is accurate.] The question we want to answer is this: is the leader culpable for the pillaging, threats, etc.? Ask me whatever clarifying questions you need to ask, and I will answer best I can.

Kermit: Hmm, so I don't understand what you mean by this? Do you mean we want to know if the person in charge is culpable for having people at a rally make threats? Is the person in question a public figure or private person? What does he actually do in a day of his life? Or do we want to know if the person in charge has someone do something that this person may not want done?

Robert: Yes, I want to understand the extent to which the leaders actions can be understood as the cause of the violence done in the legislature building. What he is culpable for is up in the air. The person in question is a public figure currently serving in the highest office in the country. In his daily life, he is responsible for all foreign and domestic policy for the country. It appears as though the supporters of the leader went to capture the second in command and perhaps hang him unless he refused to certify the vote. That was implied in the leader's rally speech.

Kermit: But what about the protesters? Did they have a clear goal of killing a person? Did the crowd have even a rough plan, like the idea to surround that building. Did it seem like there was a rallying cry?

Robert: Very good questions, Kermit! Let's see. At points while they were breaking into the building or while they were roaming the building, the crowd was chanting the names of the lawmakers they were looking for, like tauntingly. They also chanted "Hang the Second in Command!" The group surrounded the building pretty efficiently, but we do not have evidence of any conspiracy to do it. Some think that members in that crowd visited the building the day before to stake it out, but this is unproved. The crowd waved many flags, some in support of the Leader, some in support of the country, some in protest of the country. 

Kermit: So what are we thinking about exactly? The person who is leading people to a rally that he knows will make this type of scene, and the lawmakers who feel like their lives might be in danger after those scenes are made, or do we want to know if the crowd itself is culpable for violence? The protestor's actions are too vague to go off of. [Edit: I agree; at this point, the pre-planning actions by Oathkeepers and Proud Boys before the speech were not widely known.) I assume though that the protestor's behavior is counterproductive with his own cause in mind, so it seems more problistic that the protester's aim was to show violence in protest of something, not to commit violence on its own accord.

Robert: I think all three of these viewpoints feed into the question, but I think we want to focus on whether the leader's rally was an attempt to either induce political violence, or perhaps to intimidate the second in command of failing to certify the leader's loss. The crowd seems like it is a means of doing this. They were perhaps a weapon as a group. But, this is complicated by the fact that the weapon is a group of conscious actors with unknown motives of their own. So, what should we focus on to determine culpability? The fact that damage happened?

Kermit: I think it is important to consider that the protesters were forced against their own will, in a sense. We know that people came to this rally with intentions of seeing and listening to a leader. I do not see how they can be held to the same standards that we would hold to a person who has gone out and caused harm to another as an individual. It seems to me that the people at the rally were there at first to support the leader, but then an event happened that was not exactly condu[c]ive for those intentions.

Robert: I see. That is very astute, Kermit. The people, for all ostensi[ble] purposes, were out that day to offer support for a leader. In doing so, many of them broke the law, but perhaps very few of them set out to do so. So, it makes sense that their actions as a whole are too vague. The actions of a crowd are not first or second degree. Good. But can we make an analogy? What if we went to a concert to see a rock band, and by the end of the night, we were in the middle of a crowd erecting a gallows and hunting for people by name, would it be reasonable to think that one thing simply led to another?

Kermit: Well, like you said before, Robert, there is  a chance that many of the people in this crowd just wanted to see their leader and wanted to tell him about how much they support him. Even if none of them wanted to, everyone at that rally had a certain idea of what was going on.

Robert: I think that is right. But, where we stand now, several hundred protestors have been convicted of a range of crimes from trespassing to attempted manslaughter. At least one person was convicted of sedition for helping to plan the attack on the building. If the question of the leader's culpability came up after that, how would we decide on whether and how to charge him?

Kermit: I think that's the issue, Robert. The Leader is not responsible for everything that happens during his rallies. I mean, he is responsible in a sense, because the people who joined him at those rallies elected him, but he cannot be held responsible for the actions of the top people in his party. He is just another member of that party, right?

Robert: So the leader is ultimately just another party member? Does that capture the reality of holding that position?

Kermit: Yes.

Robert: Okay. Let's expand the question of culpability to every person who made a speech at that rally? What then?

Kermit: I think we should then say that they are all culpable, but in different ways. The second in command did something illegal by fleeing, but the others don't have that same charge. [Edit: this is inaccurate because of an error in the hypothetical I gave her; the Vice President did not flee the Capitol complex specifically because he determined it would be wrong to do so.] It would be unfair to point fingers at every person who has made a speech against the party at the rally.

Robert: The people left the leader's rally and tried to hang the second in command. Missing an official function is wrong perhaps, but running for your life can't be illegal, can it? In any case, would you bring charges against the leader, and if so why? If not, why not?

Kermit: I don't think I would bring charges against the leader, because first off, there was no violence in the speech he made. Secondly, the people who attended that rally didn't necessarily know that they would be causing violent scenes. It is hard to place direct blame on the leader. It seems like the real crime here is

​​Robert: go on!

Kermit: The real crime, in my opinion, is the collapse of national unity. Because so much violence was done that could have been avoided, and because it has led to complete panic and distress before the inauguration of the new president, too much time will be wasted on rebuilding. Also, the country's second in command fled. There

Robert: go on!

Kermit: It is also worth noting that the immber [sic] of people injured was high, more than it would have been had the riot never happened. From this perspective, the leader and his party injured their own country far more that they helped it by encouraging a rally like this.

Robert: So that is all? Reckless endangerment?

Kermit: I think so, yes.

Robert: And we should just prosecute the protesters who broke in or broke things? Not the leader who amped them up at the rally?

Kermit: Right.

Robert: Thank you for thinking about this with me!

Kermit: I am glad I could help you, Robert.