On Blaming Those Incited to Riot in the US Capitol
On the day Congress met to formally count the votes of the Electoral College, President Donald Trump incited a mob to move on the Capitol. The mob broke through lines of police, broke into the building, engaged in vandalism, beat a number of police officers (killing one), disrupted the vote count, and sent member of Congress into hiding. (Here is a timeline.)
There is little reason to doubt that Trump deserves blame for inciting the mob to riot. It was the culmination of a political career based on dishonesty. He rose to the presidency peddling the lie that President Barack Obama was not born in the United States, and according to the Washington Post he made over 20,000 false or misleading statements by July 2020. Then, after losing the election he commenced with the Big Lie, which he has told and told again, namely that he won, in fact, that he won in a “landslide.” He repeated this lie at the rally he called his supporters to attend just as the certification of Joe Biden’s victory was getting under way in Congress. And he inflamed matters further by saying, among other things, “We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved. … We will stop the steal.”
I don’t want to wade into exactly what crimes he committed, though they are surely serious. His only honest defense against blame, as I see it, is that he is a sociopath who can’t truly be blamed because he has no moral compass at all. That is no defense in the law, but I am attracted to the view that it ought to provide a sort of insanity defense, one that casts him as outside the realm of moral agency and into the realm of the dangerously mentally ill, a man who must simply be constrained because of the danger he poses to others. Others disagree and think sociopathy is no defense against punishment. That well-worn dispute does not concern me here. I want, rather, to turn my attention to those who were riled up by his lies, those who believed that the election was stolen and that they were on the right side of the fight of “good versus evil, dark versus light.”
My basic concern is that if I believed the election was stolen, and if I had satisfied myself that my belief was well founded, then I would believe that resisting the outcome, even with force, would be reasonable. Indeed, I once wrote about the limits of our duty to obey legitimate law: “even in an ideal world, … I might find that there is a profound injustice in the law and that illegal force would provide the best way to address that injustice. If so, I believe that I would be no less reasonable than I ought to be if I had the courage to use illegal force.” Appealing directly to justice may not succeed as a legal defense; but if not, so much the worse for unjust laws. At least if the injustice of the law is profound enough, we should nonetheless valorize those who fight for justice, even if it requires using illegal force to do so.
Like U.S. soldiers in 2003, Trump’s insurrectionists were assured by their president of something which, if true, would justify their actions (or at least come close).
It should be noted that valorizing Trump’s insurrectionists faces a particular problem, beyond the fact that it was based on a lie: their battle plan made no sense. They stormed the Capitol… and then what? Like the dog that catches the car, many had no idea what to do next. They seemed to believe that someone, presumably Trump, had a plan. As one person in the crowd put it: “We wait and take orders from our president.” But like so much else Trump did, it was all for show, with no substance. Still, for the sake of making sense of their actions, we must assume that they had a sense that somehow something positive would come from their actions. (And some, to be fair, did have a plan: taking hostages or “hanging” Vice President Pence.)
My problem with their actions, then, is not so much that political violence could not be justified if what they believed about the election being stolen were true (though some acts could not be justified even in that context); it is that their beliefs were so obviously unreasonable. Trump had lost in over 60 lawsuits, and in many instances that was because his lawyers had the opportunity to present, but failed to present, any meaningful evidence of substantial fraud. In addition, Chris Krebs, the director of the Cybersecurity and Infrastructure Security Agency, appointed by Trump, stated that the election was “the most secure in American history.” William Barr, his attorney general, said on Dec. 1: “we have not seen fraud on a scale that could have effected a different outcome in the election.” These were not the statements of Trump’s enemies. These were his appointees. Taking Trump’s claims of a stolen election at face value was simply not a reasonable thing to do.
But I think there are ways of making sense of it that complicate the claim that those who engaged in the insurrection were culpable. For an analogy, consider American soldiers who participated in President George W. Bush’s 2003 invasion of Iraq. As Jeff McMahan pointed out, they were “victims of positive deception by their government … when they were assured by the Bush administration that Iraq possessed weapons of mass destruction.” Like U.S. soldiers in 2003, Trump’s insurrectionists were assured by their president of something which, if true, would justify their actions (or at least come close). If you live in a community where most people trust Trump, if you watch media that tells you to trust Trump and to distrust the “fake news,” if you have tuned out the claims that he is a liar because he has been praising you and people like you and because it is simply too incredible to believe that anyone could lie as much as the “fake media” say he lies, if you think the fake media and liberal Democrats have been out to delegitimize him from the first day of his presidency, then it makes sense that you might sincerely believe the election was stolen. And if it makes sense that you might believe what they believed, and if it makes sense to do what they did if you believed what they believed, then their culpability is not so straightforward.
[T]he fact that it makes sense that people who are not evil and not idiots might believe Trump’s claims about a stolen election does not mean that those who believed him and engaged in insurrection as a result are off the hook.
Yet the fact that it makes sense that people who are not evil and not idiots might believe Trump’s claims about a stolen election does not mean that those who believed him and engaged in insurrection as a result are off the hook. Let’s return to the analogy with McMahan’s view of unjust combatants. He wrote: most “have been negligent with respect to what are, in the context, their rather stringent epistemic responsibilities and thus their ignorance, and the action based on it, are culpable to varying degrees.” I think the same must be said of those who took part in Trump’s insurrection. They had plenty of opportunity—at least in the weeks and months between the election and the insurrection—to think more critically about what they believed, and the seriousness of their actions gave them decisive and overwhelming reason not to act without having done so. They were, at the very least, negligent (if not also motivated by malice) in their taking him at his word.
Assuming their deep fault was epistemic negligence about important moral matters, the next question is: how should they be blamed for that? Here I turn away, again, from the legal questions of just what crimes they have committed, and focus on the underlying moral issues: In what way are they blameworthy, what would be the point of actually blaming them, and how could that blame be properly expressed in a fitting punishment?
Recent discussions of blame have been voluminous, and there is no space here to canvas them, so I will simply describe the view I have recently developed. An agent is blameworthy if she acts wrongly without a valid excuse. But the point of blame is fundamentally to be found in blaming oneself, not in blaming others. That is, the fundamental suffering involved in blame is the suffering agents inflict on themselves insofar as they have the painful realization that they have wronged others they care about and have not lived up to standards that they set for themselves. The point of blaming others is to communicate the appropriateness of their blaming themselves if they want to restore the trust they violated by their wrongful actions. Wrongdoers who blame themselves the way others blame them will willingly accept punishment, if it is just and proportional, as a token of their trustworthiness. Of course, few wrongdoers will accept their punishment that way, at least at first. But if the punishment is proportional to the crime, they should be able to blame themselves to the degree that would lead them to that sort of acceptance of responsibility.
[T]he preferred, because most fitting, punishment would be one in which [insurrectionists] not only come to appreciate why they went wrong, but also help others to avoid going down the same path.
What does that look like in practice, in this context? I suggest that the punishment of Trump’s insurrectionists—at least insofar as their fundamental crime is insurrection, rather than something more concretely harmful, like physically attacking others—should involve two prongs. First, they should have to participate in classes on media literacy and critical thinking. The point would not be to challenge their values head on, like some sort of Soviet or Chinese reeducation camp; it would be to inculcate a better sense of their epistemic responsibility. That is, they should be trained to understand why what Trump called “the fake news” is actually more reliable—not 100% reliable, but more reliable—than the sort of propaganda they have taken at face value. And they should be trained to recognize the importance of being epistemically responsible when making grave decisions such as whether to engage in acts like storming the Capitol.
Second, assuming they show some ability to learn what they need to learn to achieve epistemic responsibility, they should then have at least the option to do community service in the communities of people who are all too ready to send future insurrectionists to act on the lies of Trump and those who would follow in his footsteps. They can run workshops at schools, community centers, religious organizations and the like, explaining how they were misled and the lessons they have now learned. They would not be forced to do such work. It would do no good if their workshops were seen as coerced performances; they would have to have other alternative forms of community service. The point is only that the preferred, because most fitting, punishment would be one in which they not only come to appreciate why they went wrong, but also help others to avoid going down the same path.
There is a danger, of course, that anyone who is successfully punished in this way will seem to be either simply brainwashed or a turncoat—a painted bird to be pecked to death. They would need to be sophisticated enough both to be and to come across as sincere and authentic and they would need protection from people who remain as deluded as they once were, people who might seek to do them harm. But just as some of the best people at getting gang members freed from violent gangs are former gang members who have seen the error of their ways, so, in this toxic climate in which nearly half of Republicans think the insurrection was justified, a punishment that not only restores the insurrectionists to the community, but helps them to bring others back with them, would seem the best response.
Thanks to Antony Duff, Romy Eskens, Doug Husak, Mattias Kumm, and Jeff McMahan for comments on earlier versions of this piece.
References and Notes
 Alec Walen, “Reasonable Illegal Force: Justice and Legitimacy in a Pluralistic, Liberal Society,” Ethics 111 (2001): 344-73, p. 373.  Jeff McMahan, Killing in War (Oxford: Oxford University Press, 2009), p. 119.  If you then got sucked into the vortex of one of the conspiracy theories about Trump’s enemies, such as the one nurtured by QAnon, it would be all the harder to doubt Trump’s claims.  Killing in War, p. 153.  Alec Walen, “On Blame and Punishment: Self-Blame, Other-Blame, Character and Suffering,” available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3681644.  See Jerzy Kosinski’s 1965 novel, The Painted Bird.
Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.