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'There's no immunity for fomenting an insurrection' | Lawyers argue Trump liable for riot in civil cases

Meanwhile, attorneys for former President Donald Trump, Rudy Giuliani and Rep. Mo Brooks argued Monday the lawsuits against them should be thrown out.

WASHINGTON — A federal judge will decide whether three civil lawsuits against former President Donald Trump may continue after hearing arguments Monday in a case that could define the limits of presidential speech.

U.S. District Judge Amit P. Mehta heard from attorneys representing dozens of defendants – among them former President Donald Trump, his personal attorney Rudy Giuliani, Rep. Mo Brooks (R-AL) and members of the Oath Keepers militia group – who are asking for dismissal of the civil lawsuits alleging their liability in the January 6, 2021, attack on the U.S. Capitol.

The three lawsuits before Mehta on Monday were brought by multiple Democratic members of Congress, including January 6th Committee Chairman Rep. Bennie Thompson (D-MI), Rep. Eric Swalwell (D-CA) and two members of the U.S. Capitol Police Department, Officers James Blassingame and Sidney Hemby, in their private capacities. The suits allege, in sum, that Trump and the others named as co-defendants engaged in a conspiracy to incite the attack on the U.S. Capitol in an effort to disrupt the certification of President Joe Biden’s Electoral College victory. More than 700 people have now been criminally charged in connection with the Capitol riot, including several members of the Oath Keepers and Proud Boys named as co-defendants in the civil suits.

Thompson later withdrew from the suit when he was named to the House Select Committee to Investigate January 6th, but other Democrats named as plaintiffs have continued it.

Attorney Jesse Binnall, representing Trump in the civil suits, led off the hearing by arguing the cases should be tossed outright – calling them “propaganda” and saying Trump’s speech on January 6 was covered both by presidential immunity and the First Amendment. He outlined a broad theory of presidential immunity that would cover nearly any circumstance.

“Is there anything the present could say, in your view, while president of the United States, that could subject him to a civil suit?” Mehta asked.

“I cannot come up with an example,” Binnall said.

On the plaintiffs’ side, attorney Joseph Sellers, representing 10 House Democrats, said Trump’s speech at the Ellipse on January 6 fell well outside the bounds of his role as president.

“There’s no immunity for fomenting an insurrection to attack Congress,” Sellers said. “Mr. Trump dispatched a crowd that he had assembled… told them to go to the Capitol, to ‘fight like hell.’ When he saw they were engaged at the Capitol, he retweeted his incendiary remarks.”

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A specific issue in the cases is whether the “Stop the Steal” rally was a Trump Campaign event, as the plaintiffs allege, or Trump speaking about the veracity of the election in his role as the president of the United States.

Complicating the issue is the continued opacity around the Trump Campaign’s role in funding the rally. Journalism non-profit Open Secrets, which tracks data on campaign finance and lobbying, has reported the campaign paid more than $4.3 million to people and firms that helped organize the January 6 rally over the course of the 2020 election.

“Given the campaign contributions to the events, the remarks he delivered, the lack of any legitimate role the president had in counting the ballots, all of this suggests this was a purely private act,” Sellers said.

Mehta will also have to decide whether, in the social media age, public tweets and statements can suffice to amount to a conspiracy. Addressing the conspiracy issue, attorney Joseph Sibley, representing Giuliani in the case, argued there needs to be a “huddle” or “meeting of the minds” between co-conspirators to form a conspiracy. The only people who committed overt acts on January 6, he said, were the individuals who went to the Capitol and committed crimes.

"The President invited people to the ellipse on January 6. The plaintiffs contend that invitation was accepted. Once they were there, he further invited them to march to the Capitol and take it by force. And they further accepted it. That's not enough to amount to a meeting of the minds?" Mehta asked.

Mehta also asked if Trump’s long delay in making a public statement urging his supporters to leave the Capitol wasn’t evidence that he supported what they were doing. Binnall said the president could not be held liable for things he didn’t do or didn’t do fast enough.

“So the President, in your view, is both immune from inciting the riot and from failing to stop it?” Mehta asked.

“The President cannot be subject to judicial action because he failed to act,” Binnall said.

The suits are not the first time a president has been subject to civil litigation. In a landmark decision in 1994, the Supreme Court ruled that former President Bill Clinton could be the subject of a civil sexual harassment suit brought by former Arkansas state employee Paula Jones. Trump himself is the subject of an ongoing defamation lawsuit brought by author E. Jean Carroll, who has alleged he raped her in a New York department store in the 1990s. The suit alleges Trump made defamatory statements about Carroll’s 2019 book – statements which the Justice Department, in a controversial decision, has said were made within the scope of Trump’s role as president.

Far more complicated, however, are the civil suits Trump now faces for his “Stop the Steal” rally speech on January 6 in which he promoted debunked lies about the 2020 election and urged his supporters to march to the Capitol – which they then did. Trump and his allies have raised multiple possible defenses, not the least of which is the First Amendment’s robust free speech protections and the wide berth he receives via presidential immunity. In Rep. Brooks's case, the defense has argued the Westfall Act grants him individual immunity since he was acting in his capacity as an elected member of Congress.

“I hope the one thing this hearing demonstrates is that this is not an easy case,” Mehta said. “I’ve struggled with a lot of these constitutional issues.”

There is a recent precedent for rally organizers being held civilly liable. In November, a jury in Charlottesville, Virginia, found the organizers of the deadly 2017 “Unite the Right” rally liable for civil conspiracy and race-based harassment or violence. The jury awarded the plaintiffs in that case, who included several counter-protesters injured during the rally, more than $25 million in damage.

At least 11 other individuals have sued Trump over his role in the January 6 riot, including seven members of the U.S. Capitol Police Department who sued him in August, D.C. Police Officers Bobby Tabron and DeDivine Carter, and Capitol Police Officers Marcus Moore and Briana Kirkland. Kirkland, who filed her suit on the anniversary of January 6, claims she suffered a traumatic brain injury when she was attacked by Trump supporters while defending the Capitol.

Mehta will also have to consider a motion by Proud Boys chairman Enrique Tarrio, who is asking him to reverse a default judgment entered against him and the organization in August for failing to respond to the civil suit. Tarrio, who is currently serving a five-month sentence in D.C., said in a motion this week he would respond to the suit as soon as he was released from jail.

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