Defense lawyers have an old saying: “If you don’t have the law, argue the facts. If you don’t have the facts, argue the law. If you don’t have either, pound the table.” An updated version of this adage, currently being used as a defense in one Capitol rioters’ case, would replace the last sentence with, “If you don’t have either, blame Fox News.”
“Foxitis” will not be found in the dictionary. Defense lawyer Joseph Hurley created it as a way to explain the behavior of his client Anthony Alexander Antonio, 27, one of the January 6 rioters who was charged with five felonies in a criminal complaint filed on April 14. The charges are: “(1) Knowingly entering or remaining on restricted grounds, (2) Violent entry and disorderly conduct on Capitol grounds, (3) Obstruction of law enforcement during civil disorder, (4) Obstruction of an official proceeding, and (5) destruction of government property.”
The actions that initiated these charges were detailed in a Statement of Facts by a Special Agent of the FBI, whose name has been redacted from the complaint. He explained that Antonio was identified in a video and by witnesses who saw him on social media. The video showed him “squirting water and throwing a plastic water bottle in the direction of Officer 1 as he was dragged down the set of stairs.”
But the bulletproof-vest-wearing, Three Percenters-badge bearing, riot-shield carrying, broken window-entering insurrectionist isn’t to blame for his actions, Hurley told U.S. Magistrate Judge Robin M. Meriweather on April 20. He did these things because he suffered from ‘Foxitis’ or ‘Foxmania.”
Hurley explained the origin of this fabricated disease to Meriweather. His client, he said, lost his job due to the pandemic and “spent the last six months sitting at home watching Fox,” according to the court argument quoted in The Guardian. “He became hooked with what I call “Foxmania” …and started believing what has being fed to him.” He then claimed that when Fox News repeatedly aired Trump’s false claims of massive election fraud, it fostered Antonio’s decision to participate in the attack on the Capitol.
Antonio got a chance to explain himself during his first media interview on Chris Cuomo Live on CNN on May 5. “When I was 18 years old,” he said, “I was saved by Jesus Christ. I dedicated my life to the Lord. And last year. I honestly put a man above Jesus Christ as my lord and savior. I believed what was being told to me. He was the President of the United States and I believed him because of that.
“So, because of that, I went to Washington. I believed him. I went to Washington like he called me to,” Antonio said. He went on to explain that he had “no clue” about what he was getting into after his 11-hour drive to the Capitol. He just went “because the President of our United States told me to be there.”
Although his attorney blamed Fox, Antonio himself never mentioned the network during his CNN interview. He blamed his actions squarely on the former President. The “blame Trump” defense has already been presented in several other cases. One rioter said he had been “inspired” by Trump’s rally speech that preceded the march to the Capitol. The so-called Shaman with the horned headdress claims he was “duped” by Trump. Another charged rioter said, "I was in Washington, D.C. on January 6, 2021, because I believed I was following the instructions of former President Trump and he was my president and the commander-in-chief.”
Legal experts say the “blame Trump” defense has little chance of success. Elie Honig, a CNN legal analyst explained, "The best-case scenario for a defense like that is that you catch the ear of a sympathetic juror and get a hung jury," Honig said. "But as a legal matter, it won't carry the defense strategy."
Hurley’s claim that Antonio was brainwashed by Fox is great fodder for comedians. Stephen Colbert began his show on May 11 by explaining the symptoms of Foxitis. “These, he said, “include Irritable Gutfeld, Bartiromonucleosis, Swollen Ainsley, blood in your Doocy, Ingraham toenail, Jeanine Pirrohoids, Tucker Carsonoma, Kayleigh McAnalcyst and Senital Warts." The cure, he explained is “’off,’ it's the button atop the remote control, brought to you by the same people who make ‘mute.’"
Arwa Mahdawi, a columnist for The Guardian, also detailed the indicators of the so-called illness. “For decades a debilitating disease has been spreading across America. Risk factors include being over 65, Republican and white. Symptoms include unhinged muttering, delusional thinking and an irresistible urge to storm the Capitol.”
“Foxitis,” real or not, is no laughing matter. Studies show, for example, that Fox News’s coverage of the pandemic may have caused its viewers to become “anti-vaxxers” who pose a threat to public health. Fox has already been sued for defamation by Dominion Voting Systems for $1.6 billion for its repeated charges of widespread voter fraud in the 2020 election.
Whatever the ultimate success of the “Foxitis” defense turns out to be, it can now take its place in the creative but improbable defense Hall of Fame, where it can join such attempts as the “Twinkie defense.” That one was presented during the trial of Dan White for the murders of Harvey Milk and San Francisco Mayor George Moscone. White’s defense was that a dietary change from health food to Twinkies, as a result of his depression, caused diminished capacity.
A case against another Trump defender has already produced a creative defense in a civil suit. Trump attorney Sidney Powell is being sued for $1.3 billion in a lawsuit brought against her by Dominion Voting Systems, the company that she repeatedly charged with widespread fraud. In a recent court filing, she argued that “no reasonable person would conclude that the statements were truly statements of fact.”
Regardless of the outcome of the criminal charges and civil charges against the hundreds of defendants in Trump-related cases, the courts will be busy trying to make sure they take proper steps to assure that responsibility is appropriately determined. When truth and democracy are at stake, surely someone must pay.
