"The President Told Me To"

A timely and important article has just been published in the Virginia Law Review: Lauren S. Emmerich, The President Told Me To: The Public Authority Defense in the Trump Era. Excerpt:

. . . The president does not have the authority to authorize forcible entry into the Capitol Building or to authorize assault or destruction of property. In other words, the president cannot just authorize violations of general criminal law.

This straightforward conclusion is precisely why the actual authority standard is the correct one. It operates to limit the civilian’s just-following-orders defense to only those cases where the official truly could have authorized the conduct, thereby avoiding abuse of the defense and widespread deputization to engage in violence. This requirement aligns the defense with entrapment by estoppel and the superior orders defenses, both of which require actual authority by the one advising or ordering and both of which have adopted limits to prevent abuse. Bringing the public authority defense in line with those doctrines simplifies the universe of reliance defenses and sets forth clear principles for its applicability. Although Barker initially appeared promising to many defendants when it laid out a potentially lenient reliance standard, it is very likely limited to its facts. Should President Trump, or any other president, direct others to take unlawful actions, those individuals should heed the example of the January 6 defendants and know that a “following orders” defense will not be available to them. Instead, it is personal responsibility that will preserve the rule of law.