Civil Lawsuits Against Donald Trump For January 6 Insurrection Get Initial Hearing

Members of Congress, Capitol police officers and government watchdog groups argued in federal court on Monday that Donald J. Trump was liable for major financial damages for his role in inciting the Jan. 6 attack on Congress, pressing an array of civil suits against the former president amid mounting frustration that he has faced no accountability for the insurrection.

The New York Times reports, Civil Suits Against Trump Seek Damages for Jan. 6 Attack:

Over nearly five hours in the United States District Court for Washington, lawyers laid out their cases against Mr. Trump, contending that he deserved to be held responsible for inflaming a violent mob, despite what are typically wide immunity protections for a president’s speech and actions while in office.

“The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.

“I will vote to impeach the President.” – Rep. Liz Cheney (R-WY).

“Mr. Trump dispatched the crowd that he assembled,” said Joseph Sellers, the lawyer for a group of House Democrats, including Representatives Barbara Lee of California, Bonnie Watson Coleman of New Jersey and Hank Johnson of Georgia. “After he saw that they were engaged in breaking into the Capitol, instead of trying to calm them, he retweeted his incendiary remarks from the rally before.”

During a hearing over whether the suits can move forward, Judge Amit P. Mehta focused on why Mr. Trump did not act more quickly to call off the mob. He asked lawyers for Mr. Trump whether the president’s slow response was not evidence he agreed with the siege after telling the crowd to “fight like hell” and march to the Capitol.

“You have an almost two-hour period in which the president doesn’t take to Twitter or to any other type of communication and say: ‘Stop. Get out of the Capitol,’” the judge said, adding, “If my words were misconstrued and they led to violence, wouldn’t a reasonable person whose words were being misconstrued come out and say: ‘Wait a minute. Stop’?”

Mr. Trump’s lawyer, Jesse R. Binnall, argued that the suits should be dismissed because his remarks inflaming inciting the crowd were protected by presidential immunity and his First Amendment right to free speech. He asserted that Mr. Trump had told the crowd to “peacefully and patriotically” march on the Capitol.

Once again there is no executive privilege for the high crimes of sedition, insurrection and treason. Any executive privilege is negated by the crime-fraud exception. There would not be federal criminal statutes for incitement and insurrection and rebellion if this was protected First Amendment speech. It is not just Trump’s speech to incitement on that day. The January 6 Committee has a substantial body of evidence of a seditious conspiracy for a coup d’etat that involved numerous people over many weeks before January 6.

“These cases should be dismissed because they never should have been brought in the first place,” Mr. Binnall said. “The complaints themselves are void of any legal basis. Instead, they’re chock-full of propaganda that’s meant to achieve a political rather than a legal objective.”

“Indeed, Justice Story specifically reminded that while former officials were not eligible for impeachment or conviction, they were – and this is extremely important – “still liable to be tried and punished in the ordinary tribunals of justice.”

Put another way, in the language of today: President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn’t get away with anything yet – yet.

We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.” – Senator Mitch MConnell (R-KY).

But Judge Mehta wrestled openly on Monday with the constitutional issues of trying to hold a president accountable through the civil courts. He noted that presidents could be prosecuted criminally only after leaving office, but he said the Supreme Court had granted “even broader” immunity protections from civil suits.

Never for inciting sedition and insurrection. It has never occured before. It is a novel issue.

The Washington Post adds, Judge challenges Trump claim of ‘absolute immunity’ from Jan. 6 lawsuits:

A federal judge challenged Donald Trump’s claim of “absolute immunity” from allegations that he incited the violent Jan. 6 Capitol riot as his attorneys asked Monday to toss out three lawsuits by Democratic House members and police officers seeking damages for physical and emotional injuries they incurred in the assault.

Arguing alongside lawyers for co-defendants Rudolph W. Giuliani and Rep. Mo Brooks (R-Ala.), Trump defense attorney Jesse R. Binnall asserted that any incendiary remarks before the assault by the then-president fell “dead-center” within his constitutional duty to ensure the nation’s election laws were faithfully executed and a president’s use of the bully pulpit to speak to the American people “freely and frankly on matters of public concern.”

U.S. District Judge Amit P. Mehta pushed back against attorneys on both sides during a nearly five-hour hearing in Washington.

Mehta gave little hint how he would rule on whether a federal jury in Washington may hear claims that the former president and others instigated and facilitated that day’s attack in violation of the Reconstruction-era Ku Klux Klan Act, which bars violent interference in Congress’s constitutional duties. But he said he would rule “quickly” on that claim, as well as whether a jury should consider whether Trump and his co-defendants are legally liable for injuries sustained by lawmakers and police during the deadly, hours-long breach of the Capitol by Trump supporters angered by his unfounded claims of election fraud.

Mehta, a 2014 appointee of President Barack Obama, is no stranger to the issue, at one point pushing back against the suggestion that Trump and other speakers were simply exhorting “peaceful and patriotic” protest.

“Let’s not recast what happened,” interjected Mehta, who also presides over cases involving several of the 700-plus defendants criminally charged in the Capitol breach by the Justice Department, including the lead conspiracy case involving alleged associates of the anti-government Oath Keepers. Plaintiffs assert that the mob interfered with Congress’s constitutional duties by force, intimidation or threat, Mehta said, adding: “That happened. The question is whether President Trump incited … or instigated that.”

Felony obstruction, 18 U.S. Code § 1505, in pertinet part:

Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—

Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

“If there was an invitation to engage in criminal conduct, or in this case tortious [civilly liable] conduct, and that invitation was accepted,” Mehta asked, pressing co-defendants, “… is that enough in your view to plausibly allege a conspiracy” that could survive dismissal and reach a jury?

Trump and his co-defendants said no, with Binnall saying the lawsuits should never have been brought in the first place.

[P]laintiffs disagreed, arguing Trump was acting not in his official capacity as president but as a failed political candidate and private citizen when he openly supported and encouraged those who used violence against election officials and his political opponents.

They asserted that Trump’s baseless and incendiary statements claiming the election was being “stolen” by fraud and his embrace of violence were part of a months-long conspiracy with others to subvert the results of the election, culminating with Brooks and Giuliani egging on the riot along with other speakers — including Donald Trump Jr. — at a fiery rally that morning at the White House Ellipse.

At the rally, the suits allege, President Trump whipped the crowd into a mob, encouraging attendees to “fight like hell” and march to the Capitol as he repeated false claims about the illegitimacy of the election.

The suits allege that Giuliani, acting as Trump’s attorney, urged lawmakers to delay the count in hopes of somehow preventing certification altogether and to pressure Trump’s running mate, Vice President Mike Pence, to overturn the result.

“The First Amendment does not protect the military-style incursion into the Capitol led by the Oath Keepers; nor does it shield Trump and Giuliani’s incendiary remarks, which aroused and mobilized the assembled crowd with the purpose, and having the effect, of violently disrupting official proceedings of Congress,” wrote House lawmakers’ legal team, led by Joseph M. Sellers.

Joined by attorneys for the NAACP and in alignment with lead Swalwell attorney Phil Andonian, Sellers also argued Trump ignored warnings that violence was a foreseeable result and did nothing to calm the frenzied mob for more than an hour after rioting began, in a conspiracy to obstruct, by force or threat, the certification of the 2020 election results.

“No one has a right to conspire, direct, and incite assaults on police officers … or to utter speech that is intended to incite violence or that is integral to criminal conduct,” added Patrick Malone and the Protect Democracy Project, which represent Blassingame and Hemby. Nor can the holder of even the nation’s highest office claim absolute immunity for “anything and everything he did … as long as he says he was acting as president and not as a sore loser candidate.”

Mehta highlighted plaintiffs’ claim that Trump plausibly approved rioters’ actions by doing nothing for hours to stop it, in contrast, for example, with Trump Jr., who texted his father’s chief of staff, Mark Meadows, at one point that afternoon to get President Trump to condemn the violence, saying it had “gone too far.”

“What do I do about the fact” that Trump didn’t do anything, Mehta asked. Sellers argued that Trump instead retweeted at 1:49 p.m. a video of himself rallying the crowd: “We will not take it anymore and that’s what this is all about. … You’ll never take back our country with weakness. You have to show strength.” And Trump told supporters that night: “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!”

Brooks is defending himself and argued that he cannot be sued because he was acting as a federal employee and member of Congress when he spoke.

At the rally, Brooks, the first member of Congress to declare that he would challenge the electoral college count certifying Biden’s victory, invoked bloodshed and asked the crowd, “Are you willing to do what it takes to fight for America?”

The Times continues:

The House Democrats’ suit accuses Mr. Trump, his personal lawyer Rudolph W. Giuliani and two militia groups, the Proud Boys and the Oath Keepers, of conspiring to incite violence on Jan. 6.

A second suit was filed by Representative Eric Swalwell, Democrat of California, against Mr. Trump, his son Donald Trump Jr., Mr. Giuliani and Representative Mo Brooks, Republican of Alabama, accusing them of inciting the mob violence.

A third was filed by two Capitol Police officers who argued that Mr. Trump was responsible for the physical and emotional injuries they had suffered as a result of the day’s events.

The arguments came after four police officers injured in the attack filed three separate federal lawsuits last week seeking to hold Mr. Trump accountable for the violence.

The latest, filed by Officer Briana Kirkland of the Capitol Police, says that she left the Capitol on Jan. 6 “covered in chemical spray, blood, with a traumatic brain injury that would cost her a year of her personal and professional life, and physical and personal injuries that will be with her indefinitely.”

Other suits were filed by Officer Marcus Moore, a 10-year veteran of the Capitol Police who is invoking the Ku Klux Klan Act of 1871, and two Washington police officers, Bobby Tabron and DeDivine K. Carter, who were attacked outside the Capitol in an area officers now refer to as the “Tunnel of Death.”

The suits bring to at least seven the number filed against Mr. Trump by people who were at the Capitol during the attack.

The lawsuits are an effort to subject Mr. Trump to some sort of accountability a year after the attack.