Trump’s potential liability for Capitol riot faces major test in court

By Katelyn Polantz, CNN Reporter, Crime and Justice

A federal judge in Washington, DC, questioned former President Donald Trump‘s actions during his speech on January 6, 2021, as he considers for the first time whether Trump is immune from liability related to his supporters attacking the US Capitol.

During a court hearing Monday, Judge Amit Mehta pointed out repeatedly that Trump on January 6 asked the crowd to march to the Capitol, but that he didn’t speak up for two hours asking people to stop the violence.

“The words are hard to walk back,” Mehta said. “You have an almost two-hour window where the President does not say, ‘Stop, get out of the Capitol. This is not what I wanted you to do.'”

“What do I do about the fact the President didn’t denounce the conduct immediately … and sent a tweet that arguably exacerbated things?” the judge asked. “Isn’t that, from a plausibility standpoint, that the President plausibly agreed with the conduct of the people inside the Capitol that day?”

Mehta didn’t rule at the end of the nearly five-hour hearing Monday, and rarely showed which way he was leaning. He noted to the dozen or so participants on the call, including several members of Congress, that it was not an easy case.

The major hearing is part of a trio of insurrection-related lawsuits seeking to hold Trump and other Republican figures like Rep. Mo Brooks of Alabama accountable at a time when the House select committee probing January 6 has aggressively investigated the political leaders who inspired the attack, and as the Justice Department is prosecuting more than 700 rioters for criminal offenses.

Mehta’s line of questioning is a foreboding sign for Trump, at least as people seek damages through civil litigation following the insurrection. Some of the lawsuits at issue use a civil rights law, commonly called the KKK Act, that allows for lawsuits when officials are intimidated from doing their public duties.

It is the first major test of whether civil litigation is a viable route to holding Trump accountable for the violence toward Congress, after he was acquitted by the Senate in his second impeachment trial last February.

If Trump’s call to action at the rally was misinterpreted by the crowd, and they still became violent, “Wouldn’t somebody who’s a reasonable person say, ‘That’s not what I meant?'” Mehta asked a lawyer arguing against the insurrection lawsuits. The judge pointed out that even Donald Trump Jr., another defendant in court Monday, texted the White House chief of staff before Trump spoke up, asking for the President to condemn the violence.

Trump and his close supporters say they’re protected by the First Amendment, that Trump and others were speaking on January 6 as public officials and that they weren’t agreeing to be part of a conspiracy with the violent crowd under the law.

Trump’s lawyer, Jesse Binnall, has argued everything Trump said while serving as President should be immune from liability — including on January 6 as well as in a call to Georgia officials asking them to “find” votes in early 2021 and at campaign rallies — and is protected from any lawsuits, because it was all part of his official actions as President.

Binnall also argued that Trump encouraged the crowd to act “peacefully and patriotically.”

“You would have me ignore what [Trump] said in its entirety?” Mehta asked minutes into the hearing. The judge pointed to a Supreme Court case related to the Johnson and Nixon administrations that established the parameters of presidential immunity.

“To say that a speech before Congress is the equivalent to a campaign trail stump speech” doesn’t appear to be what the Supreme Court had ruled on the boundaries of presidential immunity, Mehta said.

Democratic Rep. Eric Swalwell of California, 10 other House Democrats, and Capitol Police officers James Blassingame and Sidney Hemby brought the three lawsuits at issue on Monday.

The lawmakers say they were threatened by Trump and others as part of a conspiracy to stop the congressional session that would certify the 2020 presidential election on January 6, according to the complaints. And they argue that Trump should bear responsibility for directing the assaults.

Swalwell, who described his position in the case in an interview on CNN on Sunday, said he expects Monday’s hearing to be long. He noted, however, that he and others will not be permitted into the courtroom because of the recent surge in Covid-19 cases. Instead, the participants will speak to the judge over videoconference.

If the judge rules in favor of Swalwell and others who have sued, the California Democrat said he expects “it’s going to speed up, and hopefully we’ll move to more depositions and evidence discovery very soon.”

The police officers, in their lawsuit, say they were hit by chemical sprays and objects the crowd threw at them, like water bottles and signs, because Trump inspired the crowd.

“Defendant’s followers, already primed by his months of inflammatory rhetoric, were spurred to direct action,” the lawsuit from Blassingame and Hemby said. “Had Trump committed directly the conduct committed by his followers, it would have subjected Trump to direct liability.”

Six additional lawsuits against Trump and others for their roles in the insurrection are also in front of the same court, but haven’t reached the point of being argued yet.

In the three cases before Mehta on Monday, the defendants include Trump, Brooks, Donald Trump Jr., Rudy Giuliani and right-wing groups the Proud Boys and the Oath Keepers. In court, they are distancing themselves from the actions of the crowd on January 6, and asking Mehta to dismiss the cases. According to Trump’s arguments, allowing the lawsuits to go forward would “drastically” chill political speech and prompt dozens of lawsuits aimed at damaging electoral opponents.

Trump and his top advisers haven’t been charged with any crimes. Several leaders in the Proud Boys and Oath Keepers who have been criminally charged with conspiracy have pleaded not guilty.

Congressman defends himself

In an unusual situation for a court hearing, Brooks defended himself on Monday, saying he was acting in his job as a congressman when he warmed the pro-Trump crowd on January 6.

The Justice Department has argued that Brooks should be on his own as he’s being sued — not to be protected by the government, because his speech was at a campaign event and he was advocating for Trump.

When asked on Monday if Brooks had spoken as a way to campaign for Trump, he said he would “reject it.” “Name the campaign,” he added, echoing Trump’s lawyers’ claims that Trump’s 2020 campaign ceased to exist when he lost the election in November and that he was speaking as President.

Brooks argues his speech on January 6 — when he called for “kicking ass” of Congress –was generally about the Electoral College certification vote planned for that day.

Mehta seemed somewhat sympathetic to Brooks’ position. If he rules in his favor, it could let Brooks off the hook from paying damages related to claims of injury Democratic members of Congress and police are pursuing.

The judge, questioning the Justice Department, quoted parts of Brooks’ speech where he spoke about the congressional vote planned for that day.

It’s typical for even outside lawyers to argue cases when their clients are suing or are sued, even if the clients themselves are lawyers.

Brooks appeared to be speaking from his office on the videoconference with the court. When he wasn’t speaking, he wore a black mask to cover his nose and mouth, printed with two words in red: “Free speech.”

Calls for combat

The Democratic representatives’ cases specifically focus on the language Trump, Brooks and others used at the “Stop the Steal” rally on the Ellipse in Washington, DC, directly before the attack.

Trump told the crowd to “show strength” and “walk down Pennsylvania Avenue,” for instance, while Brooks, in his speech, said, “Today is the day American patriots start taking down names and kicking ass.” Also at the rally, Giuliani told the crowd to have “trial by combat.”

Following the speeches, hundreds of pro-Trump rally-goers marched to the Capitol, severely beating law enforcement officers guarding the building and breaking through barricades and windows to get inside. Many then ransacked congressional offices and some chanted “treason” as they overtook the Senate chamber, from which lawmakers and then-Vice President Mike Pence had been evacuated minutes before.

“The President has been very clear he was there at the Ellipse as President,” Binnall said in court Friday “He was advocating for Congress to take or not take certain actions. … We are dead center on immunity.”

After the Senate voted not to convict Trump last February, Senate Minority Leader Mitch McConnell pointed to lawsuits as an avenue for retribution.

The Kentucky Republican said Trump was “still liable for everything he did while he was in office” and noted “we have civil litigation” from which a president would not be immune.

The lawsuits could take months or even years to see resolutions.

This story has been updated with details from the court hearing.

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CNN’s Sarah Fortinsky contributed to this report.