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By Andrea L. Moseley

On Friday January 28, 2022, Gabriel Garcia filed his notice of intent to assert a public authority defense in response to the six count indictment pending against him for conduct relating to January 6, 2021. Reportedly, 768 people have been charged in the “Capitol Insurrection” thus far. Somebody please correct me if I missed it, but I have not heard anyone else in these cases officially give notice of intent to raise a public authority defense.

What in the world is the public authority defense?

The public authority defense is raised by a person accused of a crime who asserts that they committed the crimes charged, but it was done in response to a request from an agency of the government. DoJ says that “there is considerable confusion in the law regarding what truly constitutes a defense of governmental authority.” There are at least three types of so-called “public authority” defenses.

  1. I honestly believed, although I was mistaken, that I committed the crimes charged in the indictment in cooperation with the government. This one is a mistake of fact defense that negates the criminal intent necessary to prove the crime.
  2. I did commit the crime but I did so because I reasonably relied upon a grant of authority from a government official to engage in illegal activity. This applicability of this version will depend, in part, on whether the governmental official had apparent or actual authority.
  3. The last form of this defense is known as “entrapment by estoppel.” In this defense, a governmental official commits an error and, in reliance thereon, the defendant thereby violates the law.

Garcia is raising the defense behind door number three “entrapment by estoppel.” We know that Garcia is raising this defense because Federal Rule of Criminal Procedure 12.3 requires him to give notice of a defense based upon “public authority.”

A defendant must put in writing and file a notice containing information about (1) the law enforcement agency or federal intelligence agency involved; (2) the agency member on whose behalf the defendant claims to have acted; and (3) the time during which the defendant claims to have acted with public authority.

In response, an attorney for the government must serve a written response within 14 days after receiving the defendant’s notice, but no later than 21 days before trial. The response must admit or deny that the defendant exercised the public authority identified in the defendant’s notice.

Garcia’s notice, in pertinent part, reads:

“Here Garcia relied on then President Donald Trump’s statements to the crowd at his rally on January 6, 2021, where Trump called the election outcome, “this egregious assault on our democracy,” and went on to tell the crowd to “walk down . . . to the Capitol” and then said “we are going to cheer on our brave senators and congressmen and women” . . . “and we are probably not going to be cheering so much for some of them because you will never take back our country with weakness.” Trump also said he was going to the Capitol too: “We’re going to walk down, and I’ll be there with you . . . we are going to the Capitol, and we are going to try and give–the Democrats are hopeless, they are never voting for anything, not even one vote, but we are going to try—give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re try—going to try and give them the kind of pride and boldness that they need to take back our country. “

The government is now placed in a position of needing to answer a very interesting question. What is the precise reason that Garcia does not have grounds to avail himself of this defense, especially if the government has any intention of claiming that the former president knew his conduct on January 6 encouraged the outcome?

The government could argue that the former president was fully aware someone, including Garcia, might engage in criminal conduct and failed to interfere. Or, perhaps they will argue that authority must actually be given not presumed by the defendant. “The imagined specter of some lurking, invisible government presence, coupled with the fact that the government never interfered with the defendant’s criminal activity, is not public authorization. If it were a defense, it would be a haven for the paranoid felon.” See DoJ Criminal Resource Manual 2055 (archived content).

In his notice, Garcia cites to United States v. Trevino-Martinez, 86 F.3d 65, 69 (5th Cir. 1996) for the general proposition that the defense of entrapment by estoppel exists. In Trevino-Martinez, the Fifth Circuit explained that an accused may only raise the defense of entrapment by estoppel “when a government official or agent actively assures a defendant that certain conduct is legal and the defendant reasonably relies on that advice.

Over the weekend, the former president reportedly stated that “Mike Pence did have the right to change the outcome, and they now want to take that right away,” “Unfortunately, he didn’t exercise that power, he could have overturned the election!” According to the New York Times, the former president’s statement also included his “usual” false assertions about election fraud, suggesting he does not believe the election was legitimate.

With this backdrop, it will be interesting to see how the government threads the needle of potentially holding the former president and others responsible for conduct that allegedly led to the insurrection while simultaneously setting out to defeat Garcia’s defense that he reasonably relied upon the advice of an official. Key to Garcia’s defense will be that he, as a retired military officer, was subject to the Uniform Code of military Justice and was following the orders of his Commander-in-Chief.