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Column: Want to see the big lie die? Take it to court

Rudolph Giuliani bows his head as he listens to Sidney Powell
Sidney Powell and Rudolph Guiliani in November 2020. As Powell confronts the legal system, she can’t make use of the big lie she promulgated.
(Jacquelyn Martin / Associated Press )

The Jan. 6 insurrection defendants are beginning to confront the legal system and formulate defenses for their conduct, and many of them are repenting, in a fashion.

Not so in the broader political setting of the Republican Party, where the big lie that President Biden stole the election still reigns.

Last week, Anthony Antonio, charged with five counts including violent entry, disorderly conduct and impeding law enforcement during civil disorder, advanced a newfangled defense in a preliminary hearing: “Foxitis.”

Antonio’s lawyer told the judge that his client lost his job and fell into a steady diet of Fox News TV, eventually succumbing to the network’s persistent lies about a stolen election: “He became hooked with what I call ‘Foxitis’ or ‘Foxmania,’ and … started believing what was being fed to him.”

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According to an FBI affidavit, footage of the Capitol riot includes Antonio screaming, “You want war? We got war! 1776 all over again,” and telling a police officer, “We will not back down,” before he takes an officer’s gas mask and jumps through a broken window into the Capitol.

Antonio’s defense is more colorful than most, but it has this in common with what we’re seeing in court proceedings related to Jan. 6 arrestees: Under threat of perjury, they aren’t justifying their behavior by saying that President Trump won the 2020 election.

CBS News reported Tuesday that 440 defendants have been charged to date, and the government intends to charge 100 or so more. The defendants are offering sundry excuses for what they did: They were journalists covering the event; they were obeying the orders of the commander in chief; or more technically, for those charged with obstructing an official proceeding, the law in question doesn’t cover Congress’ certification of the electoral college vote.

That Trump’s big lie isn’t being offered up as a defense is encouraging. The courts are serving their role as a social institution where the truth will out. The Jan. 6 defendants know they have to sober up at least insofar as abandoning the false claim that propelled the insurrection. “Maybe I believed that America was being robbed of a president,” Antonio told CNN on Monday. “I now know that that was a lie.”

Will Antonio’s “Foxitis” claim work?

To a lot of observers, it seems at least plausible that a significant cohort of the insurrectionists — not all of them surely (and possibly not Antonio) — took leave of their senses Jan. 6 out of some complicated combination of mass psychology, social alienation and the whip hand of Trump and his supporters.

In this sense, they are in the lineage of offenders — such as members of religious cults who commit crimes, or kidnapped-heiress-turned-robber Patty Hearst, or battered women who kill their partners — who seek leniency on the ground that they had succumbed to overwhelming psychological pressure and were in a kind of fever dream.

The courts struggle with such claims, which don’t quite fit into any of the accepted justifications and excuses, such as necessity, duress or diminished capacity. Each of those defenses incorporate fairly stringent tests that “Fox News made me do it” would probably not meet. Can Antonio’s lawyer convince anyone that as he stormed the Capitol, he really didn’t know what he was doing?

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On the other hand, Antonio may stand a better chance in court than one of the people he might have fallen prey to on Fox News, attorney Sidney Powell. She spent weeks proclaiming the big lie with total confidence.

Powell’s day of reckoning is coming in the form of a defamation lawsuit from Dominion Voting Systems, which she claimed was corrupt and had falsified the vote in key states. Her excuse in court so far? Yes, I lied (again and again), but no reasonable person would have believed my silly, false claims.

The rationalizations offered by Powell, Antonio and the rest of the Jan. 6 arrestees will be sifted in the courts for years to come. With so many defendants, the legal system is going to need to temper justice with mercy in many cases.

As they sort out punishment, the courts are at least confirming the flimsiness and the falsity of the big lie, something a good part of the political system cannot manage.

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House Minority Leader Kevin McCarthy’s ruthlessness toward Rep. Liz Cheney is a case in point. Cheney was forced to forfeit her GOP leadership role for the great sin of telling the truth: “I will not sit back in silence,” she said in a speech Tuesday night, “while others lead our party down a path that abandons the rule of law and joins the former president’s crusade to undermine our democracy.”

If we saw a political faction in another country repudiate a free election as the GOP is doing right now, American diplomats would be calling out that crime.

McCarthy and Cheney’s colleagues understand the election was not stolen. Given the deep support for Trump among the Republican base, however, they are actively willing to flog the big lie no matter what.

For now, in fact, among the instigators and advocates of the big lie, and those brainwashed by it, the only cure appears to be the crucible of a court proceeding. The Trump years have taken some politicians’ tolerance for dishonesty to new highs. Until we can reimpose a political cost for brazen untruths, we have to look to the legal system to enforce sanity.

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@HarryLitman


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