*Permission to reprint from her brilliant blog was generously granted by Teri Kanefield.
By Teri Kanefield
“I am a political prisoner,” said Oath Keeper and January 6 insurrectionist Stewart Rhodes during his sentencing hearing, “and like President Trump, my only crime is opposing those who are destroying our country.” Rhodes vowed to continue to “expose the criminality of the regime” in prison.
He was then sentenced to 18 years for seditious conspiracy with an upward departure for terrorism under the sentencing guidelines.
(Why this is a big deal: Rhodes never entered the Capitol building, so the DOJ has now reached the planners and instigators. For more on that, see this post. This was also the first time the judge allowed an upward enhancement for terrorism for an insurrectionist.)
Timothy McVeigh said something similar about his 1995 attack on the Murrah Building in Oklahoma City. He said his attack “was a direct response to the abuses and usurpations of the federal government, particularly those at Ruby Ridge and Waco.” (Homegrown, p. 4)
Quotations are from this book:
Timothy McVeigh was a man ahead of his time
McVeigh was Incel before the word was invented. He was “unable to attract the sexual interest of women and responded with rage toward them (Homegrown, 55).
McVeigh was also the prototype of an aggrieved Trump voter long before Trump entered the political scene. McVeigh’s father and grandfather had a lifetime of steady work at a local factory. When McVeigh needed a job, such opportunities were gone. “The world he once knew–the one where his father walked into the same steady job in the same factory where his own father used to work–had vanished. (Homegrown, 64). In 2016, his hometown cast 67% of its votes for Trump.
McVeigh was unable to handle college, so he dropped out during his first year. He was also unable to find a job, so he earned a meager living selling items at gun shows, often living in his car or staying with friends. He had some success in the military because he was eager to kill people, but he failed to make the Green Berets, and when two Black Americans were chosen over him to attend sniper school, McVeigh believed he was better qualified and insisted that the Black men were affirmative action hires and thus took what was rightfully his.
So, basically, he was a loser who believed Black Americans were robbing him of his “birthright” of a guaranteed job.
McVeigh was “paranoid about immigration and race-mixing.” His political views “were a cauldron of resentment–against politicians who wanted to take away his guns and people (especially Black Americans) who, he believed, had jumped ahead of his kind in the American hierarchy.” (Homegrown, 26.)
He thus held to Tucker Carlson’s replacement theory long before Tucker Carlson.
He said things like, “Nothing of great value has ever been accomplished or contributed by a Black person.” He said that if Blacks could wear a shirt that said Black Power, he could wear one that said White Power—and he did. (Homegrown, 42.)
He was an early fan of Pat Buchannan and Rush Limbaugh. He was also an early Second Amendment absolutist: He believed that “freedom” meant that he should be able to buy any gun at any time. He absorbed the culture of gun shows, which were a haven for right-wing political activists. He joined the National Rifle Association as a teenager and faithfully read American Hunter, the NRA’s official magazine.
Like the Confederates and segregationalists before him, he believed that “freedom” was “threatened by federal power.” (Homegrown, 23.)
Also, like the Confederates before him, he believed violence was a permissible way to achieve his political goals. In 1992, he wrote a letter published in a local newspaper in which he said, “Is Civil War imminent? Do we have to shed blood to reform the current system?” (Homegrown, 56.)
Like the right-wing extremists of today, he believed that he was acting in the tradition of the founding fathers and “wrapped his views in twisted interpretations of the Constitution.” (Homegrown, 118.) He recited from the Declaration of Independence to justify his attack on the Murrah Building. “If we wish to be free–if we mean to preserve inviolate those inestimable privileges for which we have been so long contending . . . we must fight!” (Homegrown, 4.)
Bill Clinton’s signing of the 1994 assault weapons ban “sealed his decision to proceed with the bombing.” (Homegrown, 6.)
McVeigh believed he was part of a much larger community of people who shared his worldview. (Homegrown, 56.) He also believed that “the bombing would be the fuse that led to a nationwide rebellion against Clinton” and what he considered “other defilers of the Constitution.” (Homegrown, 10.)
He committed a robbery to finance the bombing of the Murrah Building.
Bill Clinton Knew
Immediately after the bombing, when the rumors were afloat that the attack was from Muslim extremists, then-President Bill Clinton knew who was responsible.
“This was domestic, homegrown, the militias,” Clinton said to his staff. “I know these people.” Later he said, “You guys have to understand. I’ve been fighting this all my life.” (Homegrown, 187) Clinton’s first political memory, when he was eleven years old, came from Governor Orval Faubus’s refusal to allow nine Black students into Little Rock Central High School. Bill Clinton had seen the KKK up close. He understood immediately that the bombing was “the product of more than just a pair of twisted minds.” It was “the result of the poisonous rhetoric of Rush Limbaugh, Newt Gingrich, and the right-wing zealotry machine.” (Homegrown, 205.)
McVeigh’s “defense”
One way to defend yourself at trial is to say, “I didn’t do it.” Another way is to say, “I did it, but I had to,” and then offer an affirmative defense. An example of an affirmative defense is self-defense. “Yes, I shot him but he was pointing a gun at me so I had no choice.”
McVeigh wanted to assert the “necessity” defense, which says that “the conduct could not be avoided and was justified because the conduct was necessary to prevent the occurrence of harm that would have been more serious.” Basically, McVeigh wanted to be acquitted on the grounds that he had to bomb the building as part of a larger effort to stop the federal government from infringing on the freedoms and liberties of Americans.
He reasoned that Thomas Jefferson himself said that “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.”
(His defense lawyers told him that the necessity defense had zero chance of succeeding.)
His other “defense” was to float conspiracy theories that the government suppressed evidence that “unnamed” others were involved. He didn’t want to name anyone. The idea was to accuse the government of maliciously hiding evidence to discredit the federal government.
Trump Rose to Power Because He Appealed to The McVeigh-Style / Pat Buchanan / Rush Limbaugh / Gun-Toting Government Haters
During the years since McVeigh’s death, the forces that led Timothy McVeigh to bomb the Murrah building have “endured, flourished, and burst forth, among other places, at the Capitol on January 6, 2021.” (Homegrown, pp. 205-206.)
I maintain that Trump owes his political power and his hold on the Republican Party to the fact that he has his finger on the pulse of McVeigh’s brand of right-wing extremism.
DeSantis might be a by-the-book fascist (see Hammer Time Thoughts‘ list of Desantis’s bills), but Trump has a better understanding of what the gun-toting, federal government-hating, misogynistic racists care about. Trump knows which fights to pick. He knows how to tap into simmering grievances. He knows better than to pick a fight with Mickey Mouse or launch his presidential campaign on a website. Unlike DeSantis, Trump is a showman who understands the optics of announcing his bid for president after riding a staircase in an opulent lobby.
Trump fascinates everyone. His enemies can’t look away because they want to see him fall. His fans can’t look away because they cheer on his brashness and want to see him defeat his enemies.
He also understands how to play to the McVeigh-style right-wing extremists who have, over the past few decades, grown in power and influence as part of an angry backlash against the modern Civil Rights and women’s rights movements, which upended the nineteenth-century hierarchy guaranteeing white men access to women and financial security.
I suspect these two things are entwined: Trump fascinates everyone because he has his finger on the pulse of America’s right-wing extremism.
Trump’s Lawyers Wrote an Unhinged Letter to Merrick Garland
Trump posted the letter on Truth Social:
The first thing to understand about this letter is that it is not normal. While it is common for defense lawyers to seek pre-indictment meetings with prosecutors, they do not do it this way if they actually want a meeting. A potential defendant does not issue a “request” to prosecutors. Potential defendants ask, and they ask nicely.
This letter was obviously dictated by Trump for public consumption. Evidently, like McVeigh and Stewart Rhodes, Trump is planning to present himself as the political prisoner of a corrupt regime whose only crime was “opposing those who are destroying the country.”
Two days after posting the letter, Trump posted this:
My guess: Trump has an inkling that he will be indicted and probably knows the charges being considered, but he has no clue when.
Trump can’t stop “fighting” because if he does, he’ll be just another pathetic loser under indictment. If he keeps “fighting,” he remains a hero of the right-wing extremists
As with McVeigh, Trump’s political needs are at odds with his needs as a potential defendant. Trump can either behave like a normal potential defendant and try to get the best deal he can, or he can be a right-wing hero and hope that the extremists ultimately gain control. (He is probably also deluded enough to think he can win the next election on the theory that these indictments will fire up his supporters, who will see the 2024 election as the last chance to prevent “left-wing radicals” from seizing complete control. The fact that Trump has promised to pardon the convicted insurrectionists demonstrates that he does not see any of these prosecutions as a liability for his political future.)
It is common, by the way, for criminal defendants to view themselves as victims of unfair prosecution. It’s often the job of the defense lawyer to talk sense into them and get them to behave in ways that can lessen their criminal liability.
But if Trump stops “fighting” and behaves in ways that lessen his criminal liability, he will lose his chance to remain center-stage and retain his grip on the Republican Party, so don’t expect him to do it.
It should be clear by now that the “indictment right now” people who have been insisting that right-wing extremism continues to flourish because that wimp Merrick Garland hasn’t brought enough indictments yet do not understand the nature of right-wing extremism.
The Westfall Act and E. Jean Carroll’s Other Defamation Case
I know what you are thinking right now. You’re thinking, “My weekend would not be complete without an explainer of the Westfall Act and the latest on the DOJ defending Trump in the other E. Jean Carroll defamation suit.”
Right?
Well, I’m happy to oblige.
E. Jean Carroll has a second defamation lawsuit waiting in the wings. That lawsuit has been on hold because of a complication. The complication is that Trump made his statements while he was president, which means the Westfall Act may come into play.
The Westfall Act (in a nutshell) stipulates that federal employees retain absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties. More specifically:
Westfall Act’s primary purpose is “to protect federal employees from personal liability for common law torts committed within the scope of their employment while providing persons injured by the common law torts of federal employees with an appropriate remedy against the United States” It modified the Federal Tort Claims Act by adding that in tort suits filed against federal employees for “negligent or wrongful acts or omissions…while acting within the scope of [their] office or employment”, the employees are considered immune, and they are removed from such suits and instead replaced by the United States government and transferred to federal court.”
The wrinkle is that defamation is a tort and therefore comes under the Westfall Act, but (here’s the real wrinkle) public officials cannot be sued for defamation. The idea is that public officials often, during the course of their duties, make statements that adversely affect the reputation of others and shouldn’t be exposed to liability.
When E. Jean Carroll sued Trump for utterances, he made while president, the first legal issues were whether a president was a “federal employee” under the Westfall Act and whether his statements were made as part of his official duties.
Under the Westfall Act, the DOJ makes the initial assessment about whether the Act applies. The DOJ, in doing its assessment, was guided by Council on Am. Islamic Relations v. Ballenger 44 F.3d 659, 664 (D.C. Cir. 2006). (The DOJ can’t make up the law. The DOJ has to follow the law as written by Congress and explained by the courts.)
The facts in Council on Am. Islamic Relations v. Ballenger indeed look somewhat similar to Trump’s case. In Islamic Relations, a Congressman, fielding questions about his personal life, made an utterance for which he was sued for defamation. More specifically, the Congressman said his wife didn’t like living across from the Council on American-Islamic Relations after 9/11. He was sued for defamation by an organization whose stated goal is to promote a positive image of Islam in the United States. The court said his remarks were within the scope of employment, even though he was not discussing government or policy. The question and comments were purely personal, but the court said the Congressman was acting within the scope of his employment because the press often asks politicians personal questions.
From this, the DOJ concluded that Trump was covered by the Westfall Act and that his remarks were made within the scope of his employment.
The district court disagreed and held that a president is not an employee of the government, as that term is used in the Westfall Act. In the alternative, it held that even if the President were a Westfall Act-covered employee, Trump had not acted within the scope of his employment when he allegedly defamed Carroll.
The case went to the Second Circuit on appeal. The Second Circuit reversed the district court’s finding that the president isn’t an employee under the Westfall Act but certified the legal question of whether his utterances were made within the scope of his employment to the D.C. Court of Appeals, thereby letting the D.C. Court of Appeals decide.
DC. Court of Appeals said: “Whether the President of the United States was acting within the scope of his employment is a question for the factfinder.” In other words, the court said yes, our ruling Council on Am. Islamic Relations v. Ballenger made it sound like there was a bright-line rule, but really, it isn’t a bright-line rule.
A bright-line rule resolves legal questions in a straightforward, predictable manner. Bright-line rules are easy to administer. They are fast. You apply the rule, and you are done. The problem with bright-line rules is that they often result in unfairness because situations are different. An “it depends” rule, which looks at the specific facts, is harder to articulate but, if articulated well, can result in more fairness.
Specifically, the D.C. Court of Appeal said this:
Under the law of the District of Columbia and on the record before us, whether the President of the United States was acting within the scope of his employment is a question for the factfinder. The record provided to this court would not entitle either party to judgment as a matter of law under any of the standards that govern motions to dismiss, motions for summary judgment, or motions for judgment notwithstanding the verdict. Further, there may also have been additional, critical facts elicited since the certification of the question of law to this court during the completion of discovery, in particular during the deposition of the former President. It is not at all clear to us that the Federal Employees Liability Reform and Tort Compensation Act of 1988, commonly referred to as the “Westfall Act,” 28 U.S.C. § 2679 et seq., requires an answer to this scope-of-employment question as a matter of law at this preliminary stage.
By saying this is a question of fact instead of a question of law, the court basically said that whether Trump spoke those words as a federal employee acting within the scope of his employment depends.
What does it depend on? That’s what the parties and lower court have to figure out.
After being told that Council on Am. Islamic Relations v. Ballenger didn’t actually create a bright line rule, DOJ basically responded by saying, “Okay, we need a chance to examine the facts so that we can reevaluate our position.”
Translation: The DOJ is saying that someone in the department has to sit down and think about it and write a legal document. While legal documents are super fun to read, as I have demonstrated in this blog post, they do take time to write, and now the DOJ has to write one.
I expect the lower court will say, “Nope, Trump’s comments were not made under the scope of his employment.” This is an easy prediction because the district court already came to this conclusion once.
I thus predict that E. Jean Carroll will get another trial, and she will win again.
