Court Rules Trump Can Be Sued For Inciting Mob On January 6
On Friday, approximately five seconds after we posted about "Trump's Terrible Horrible No Good Very Bad Week In Court," the old goat got yet more bad news on the legal front. US District Judge Amit Mehta rejected Donald Trump's motion to dismiss, ruling that three cases arising out of his conduct on January 6, 2021, can proceed. And if the ruling holds — a big if with those six goons squatting at SCOTUS — it's a virtual certainty Trump will be going under oath for discovery.
The three cases are: Swalwell v. Trump, in which Democratic Rep. Eric Swalwell sued Trump, Rudy Giuliani, Don Jr. and GOP Rep. Mo Brooks; Thompson v. Trump, in which 11 Democratic representatives sued the former president, his lawyer, and both the Proud Boys and the Oath Keepers; and Blassingame v. Trump, in which two Capitol Police officers seek to hold Trump to account for their injuries on January 6. In addition to various tort claims, all the plaintiffs sued under a theory that Trump and the other defendants conspired to violate the Ku Klux Klan Act of 1871, a Reconstruction Era statute that makes it illegal to impede a government official carrying out his or her official duty, in this case the certification ofJoe Biden's Electoral College win and the peaceful transfer of power.
Conspiracy: What Is That Again?
There are a lot of moving parts here, so it probably makes sense to orient this discussion around the definition of a conspiracy. A civil conspiracy consists of (1) an agreement that is (2) between two or more parties to (3) commit an unlawful or wrongful act that (4) injures a third party.
As for the first and second elements, you don't have to huddle up and decide who's gonna drive the getaway car to be part of a conspiracy. The Proud Boys and Oath Keepers were predictably idiotic about it, with the Chief Oaf writing on Facebook that they'd “organized an alliance between Oath Keepers . . . and Proud Boys. We have decided to work together and shut this shit down.” (Winner winner chicken dinner!) As for elements three and four, a whole bunch of these seditious little shits have already been charged with crimes, up to and including seditious conspiracy, so that's a home run there.
As for Trump, he wasn't all that much slicker, summoning the crowd to DC on January 6 with his infamous "Be there, will be wild!" tweet. Indeed, as Judge Mehta notes, there was no permit for the march on the Capitol. They were greenlighted for a rally on the Ellipse, but it was Trump and his minions who decided they would sic the MAGA mob on Congress:
Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.” From these alleged facts, it is at least plausible to infer that, when he called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes. The Oath Keepers, the Proud Boys, and others who forced their way into the Capitol building plainly shared in that unlawful goal.
Trump spent 75 minutes on the Ellipse whipping the crowd into a frenzy with lies about a stolen election and promising to walk down to the Capitol with them to stop the certification of the election. Which was a lie, of course, since he headed back to the White House to watch the action on television. But here's a longish excerpt from Judge Mehta's opinion, which itself contains an excerpt from Trump's speech, laying out the inciting language:
As the President’s speech continued, the crowd grew increasingly animated. The President told them that if the Vice President did not send ballots back for recertification, “you will have a President of the United States for four years . . . who was voted on by a bunch of stupid people who lost all of these states. You will have an illegitimate president. That is what you will have, and we can’t let that happen.” At some point after, the crowd began shouting “Storm the Capitol,” “Invade the Capitol Building,” and “Take the Capitol Right Now.” They also began to chant “Fight Like Hell” and “Fight for Trump.” At the conclusion of his speech, the President told the rally-goers: “I said, ‘Something’s wrong here. Something’s really wrong. Can’t have happened.’ And we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.”
Almost immediately after, he told the crowd: So, we’re going to walk down Pennsylvania Avenue . . . and we’re going to the Capitol and we’re going to try and give—the Democrats are hopeless. They’re never voting for anything. But we’re going to try to give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness they need to take back our country. So, let’s walk down Pennsylvania Avenue.
Trump counters with a bunch of defenses that we can largely ignore — sweeping invocations of presidential privilege, saying it was part of his presidential duties to comment on the election, and insisting the president's obligations under the Take Care Clause mean he's responsible for policing Congress's tabulation of Electoral votes. WHAT EVER.
Trump's strongest argument is that he was simply exercising his First Amendment right to say stupid, even false shit in public. And I hear you getting ready to tell me it's illegal to yell fire in a crowded theater, but no, stop that. First of all, that quote is from a horrible Supreme Court decision likening anti-war protestors to people causing a stampede by falsely shouting "Fire." Second, you're going to give Popehat a heart attack. And third, that's not the standard here anyway.
To overcome Trump's First Amendment defenses, the plaintiffs have alleged he engaged in illegal incitement, fulfilling the third prong of the conspiracy requirements. That is, his speech was “directed to inciting or producing imminent lawless action,” and that it was “likely to incite or produce such action," AKA the Brandenberg standard. Remember, to survive a motion to dismiss, the plaintiffs don't have to prove he did anything; they just have to make plausible allegations that, if accepted as true, fit within the legal definition of incitement.
According to Judge Mehta, they met their burden here:
The prospect of violence had become so likely that a former aide to the President predicted in a widely publicized statement that “there will be violence on January 6th because the President himself encourages it.” Thus, when the President stepped to the podium on January 6th, it is reasonable to infer that he would have known that some in the audience were prepared for violence.
Yet, the President delivered a speech he understood would only aggravate an already volatile situation. For 75 uninterrupted minutes, he told rally-goers that the election was “rigged” and “stolen,” at one point asserting that “Third World Countries” had more honest elections. He identified who the culprits were of the election fraud: “radical Left Democrats” and “weak” Republicans. They were the ones who had stolen their election victory, he told them. He directed them not to “concede,” and urged them to show “strength” and be “strong.” They would not be able to “take back [their] country with weakness.” He told them that the rules did not apply: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” And they would have an “illegitimate President” if the Vice President did not act, and “we can’t let that happen.” These words stoked an already inflamed crowd, which had heard for months that the election was stolen and that “weak politicians” had failed to help the President.
So, when the President said to the crowd at the end of his remarks, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” moments before instructing them to march to the Capitol, the President’s speech plausibly crossed the line into unprotected territory. These words did not “amount to nothing more than illegal action at some indefinite future time.” Hess, 414 U.S. at 108. President Trump’s words were, as Justice Douglas termed it, “speech . . . brigaded with action.” Brandenburg, 395 U.S. at 456 (Douglas, J., concurring). They were plausibly “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action.” Hess, 414 U.S. at 108–09.
Please forgive the long quote, but I anticipate revisiting this issue when Clarence, Sam, Neil, Brett, and Amy get their hands on this.
Anyway! Remaining Bits And Pieces ...
This is where Rudy and Deej fall out of the case, because while they shouted a lot of stupid shit, they were a tick less explicit in their calls to overthrow the government now right now. Also, Rudy and Don Jr. are just a couple dumbasses. "There is no allegation that anyone took Giuliani’s words as permission to enter the Capitol," Mehta writes. This stands in contrast to Trump, who told the lunatics to go "fight," and then they showed up half a mile away saying, “We were invited here by the President of the United States.” Since the plaintiffs haven't successfully made their claim of incitement regarding Don Jr. and Rudy, then there's no bad act to satisfy the third prong of the conspiracy allegation, and the case against Don Jr. and Rudy gets dismissed.
It's also where Mo Brooks gets to give Eric Swalwell two big middle fingers, or it would be if Brooks weren't such a bloody goddamn idiot. Brooks, who actually practiced law once upon a time, has done a lot of crazy shit since this case was filed almost a year ago. He dodged the process server. He tweeted what appeared to be his Gmail password. He demanded the federal government represent him, since he was addressing a mob in his "official capacity." He sued the Department of Justice when it said he was on his own, insisting that a non-smoker such as himself, none of whose children are divorced, deserved representation. He even showed up in court to defend himself pro se.
You know what Mo Brooks didn't do?
He didn't file a motion to dismiss.
But if he ever gets around to it, the court will let him out of this mess, too.
A dispute over [whether the DOJ needs to represent Mo Brooks] does not appear to be a question regarding the court’s subject matter jurisdiction, so the court is not required to consider it before the merits. The court instead invites Brooks to file a motion to dismiss for failure to state a claim. The court is prepared to grant such motion for the same reasons it dismisses all claims against Giuliani and Trump Jr.: Brooks’s remarks on January 6th were political speech protected by the First Amendment for which he cannot be subject to liability.
Wonder which staffer is going to draw the short straw and have to spend the Presidents' Day holiday explaining this ruling to the boss.
LOL, good luck!
[Swalwell v. Trump, Docket via Court Listener / Thompson v. Trump, Docket via Court Listener / Blassingame v. Trump, Docket via Court Listener]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.