Hello from US District Judge Amit Mehta's virtual courtroom, where it's going to be a whole mixed bag of crazy shit, so strap in.

There are three cases on the docket today surrounding former president Donald Trump's liability for the events of January 6. In Swalwell v. Trump, Democratic Rep. Eric Swalwell is suing Trump, Rudy Giuliani, and GOP Rep. Mo Brooks for inciting the riot. In Thompson v. Trump, multiple Democratic representatives are suing the former president, his lawyer, and both the Proud Boys and the Oath Keepers. These cases both allege violations of the Ku Klux Klan Act of 1871, since they were impeded in their official duties by the mob.

The third case, Blassingame v. Trump, was brought by two Capitol Police officers seeking to hold Trump to account for their injuries on January 6.

Trump et al. have moved to dismiss the cases for lack of standing and failure to state a claim.


Here's how Judge Mehta says this is going down today:

1. Presidential immunity/Article III standing (15 minutes per side)
2. Pleading of § 1985(1) claim (including statutory standing) (15 minutes per side)
3. First Amendment defense (15 minutes per side)
4. Pleading of common law/D.C. Code offenses (10 minutes per side)
5. Defendant Rep. Mo Brooks’s Westfall Act certification request (10 minutes per side, including the United States)

That last one with Mo Brooks should be super fun, and requires a little background. See, Brooks claims he was acting within the scope of his official duties when he told the assembled lunatics on the Ellipse, "Today is the day American patriots start taking down names and kicking ass!" So he wanted the government to defend him in the suit, the way they're defending Trump in E. Jean Carroll's defamation claim. But the Justice Department told him to piss off, and Item five up there with the Westfall Act certification is him whining to the judge that it's NO FAIR. When last we checked in, Congressman MensaGenius was representing himself. And dear God, we have not lived a good enough life to deserve a hilarious appearance in federal court by Mo freakin' Brooks, who graduated from law school in 1978 and doesn't seem to have done a lot with that degree recently. But hope springs eternal!

Call in to listen along at (877) 848-7030, access code: 3218747, or maybe watch on YouTube here.

Ready?

1:05 Gonna start soon, they're reminding us AGAIN that it's illegal to record a federal hearing.

1:09 KA-CHING!!!! Mo Brooks pro se litigant.

1:12 Jesse Binnall up first as counsel for Trump and Don Jr., who is a defendant in (I believe) the Swalwell case.

Opens by saying the cases "should never have been brought" and are "chock full of propaganda for a political rather than legal objective."

1:14 Judge Mehta says Binnall should make legal rather than rhetorical arguments. ZING!

To wit, how is the conduct alleged in this complaint, i.e. the tweets and the speech at the Ellipse, part of Trump's official presidential duties.

1:17 Binnall says the decision should be "content neutral," meaning that it doesn't matter what Trump said.

"Giving a speech is what presidents do."

Judge Mehta isn't super impressed with this line of argument, suggests that Trump was speaking as a candidate, this was a campaign speech, not presidenting.

1:21 Binnall is making a bizarre argument that any comment on "policy" even in a stump speech was part of Trump's job as president.

Judge Mehta asks if the filing of the election lawsuits was part of his presidential duty.

Binnall says it was because ... the election was over, so the campaign was over, and thus presidenting.

Mehta: "That's not true" because the campaign contributed to the suits and to the rally.

1:25 Mehta asks about the call to Georgia Secretary of State Raffensperger and if that is a presidential act for which there is immunity.

Binnall says yes, Trump was ensuring the laws were faithfully executed, as was his presidential duty.

Mehta wonders what the president has to do with enforcing state laws, then asks for an example of something that would not be subject to presidential immunity. Binnall says nothing Trump could say would fall outside his presidential "absolute" immunity, but perhaps entering into a lease for the campaign — an act, not words — would do it.

1:30 LOL, Binnall is arguing that presidential immunity is just like judicial immunity. You don't want to get sued, your honor?

Mehta asks whether there is immunity for actual incitement, essentially a hypothetical of what would happen if the court found that Trump satisfied the Brandenburg test.

Binnall says there's immunity for incitement, like when Obama referred to the pending Citizens United case in his state of the union address.

Ummm, wut?

1:33 Mehta says what about defamation? Is that subject to presidential immunity?

HELL YES, says Binnall.

Mehta says "Is there anything the president could say as president that would subject him to civil suit?"

Binnall says nope, which is smart, since his client has said so many outrageous, defamatory, and false things. Don't want to give away the store! "The duties of the president are all encompassing while he holds the office."

And then Binnall caught himself, since he's also arguing that Trump out of office still has executive privilege in the National Archives case.

1:40 Attorney Joseph Sellers up for plaintiffs, arguing that immunity is for official acts only. He's making a much more lawyerly argument, referring to cases and shit — how novel!

Trump's acts at the Ellipse count as "purely private actions," not part of his official duties. "Demanding a riot which interfered with the action of a co-equal branch of government" is not the president's job. (No shit.)

Sellers says Binnall's argument that presidential immunity must be "content neutral" would allow immunity for treason. Mehta counters that treason is criminal, not civil, so the analogy is imperfect.

1:45 Mehta asks why there is no immunity for comment on the election, which is a matter of public interest.

Sellers says this wasn't comment, it was an instruction to his followers. Mehta seems highly skeptical, says that Trump as president has the right to try to influence congress.

Sellers says that there's no "legitimate lawful role" for the president in the counting of electoral votes, and there sure as shit is no legit role for the president to foment insurrection by telling his followers to go to the Capitol to "fight like hell."

1:50 Mehta says that the plaintiffs are asking him to assess the president's motives and use that as a reason to deny him immunity.

Sellers says the words matter, not the motives.

This is an interesting argument now. Sellers says that statutes which attempt to separate campaign expenses from presidential expenses — like flying the president to campaign events — should guide the court as it tries to separate campaign activity from presidential duties. And this was an event subsidized by the campaign, it had nothing to do with his official role, so should be treated as a purely private act.

Also no immunity for INSURRECTION.

1:57 Sellers and Mehta are comparing this case with Nixon v. Fitzgerald, in which President Nixon was sued for an official personnel action.

They're on to Article III standing, i.e. whether the plaintiffs have the right to sue. In their brief, the Oath Keepers apparently argued that Swalwell and Thompson can't sue in their individual capacities under the KKK Act. Sellers says that the law is intended to protect them from harm in the performance of their official duties.

2:00 Attorney Patrick Malone is up with a follow-up on behalf of the Capitol Police. He's making an argument that there's no statutory authority for the president to speak on election certification and getting a lot of pushback from the court. His argument is that, if Trump were just a candidate at a political rally he would be liable for incitement. Being president can't immunize the incumbent.

2:03 Attorney Philip Andonian for Swalwell points out that Bill Clinton was held responsible for perjuring himself in Paula Jones lawsuit, so the whole "content neutral" thing is patently nonsense. He argues that Trump's motive is irrelevant, incitement is not an official act.

2:08 Binnall back up for rebuttal. He's making a bizarre argument that Trump retains immunity for something he could say in his official capacity even if he says it on the campaign trail. Like if Trump could say "Democrats suck" in the Oval Office, he's performing his official duty if he says it at a campaign rally. Which ... makes no fucking sense.

Now he's saying that the speech at the Ellipse wasn't part of the campaign, so ipso facto not campaigning.

2:15 Okay, on to the second issue, standing under 42 U.S. Code § 1985, conspiracy to interfere with civil rights. Rudy's lawyer Joseph Sibley, IV is up.

Sibley says there's no allegation of a conspiracy plausibly pled in the brief, since the only people who committed the injurious acts — i.e. the riot — weren't huddled up with Trump, Rudy, and Mo.

Mehta does not appear to be receptive to this argument, points out that Trump, Rudy, and Mo said "do it," and the rioters did it. How is that not conspiracy?

2:20 Sibley seems to want to just keep pointing to the fact that Rudy didn't sit down and instruct the individual rioters. Federal judges don't usually like arguments that amount to basically, "DUH, can't you see my point, dummy?"

Particularly this judge, who is meticulously careful and respectful.

2:25 Mehta is homing in on the difference between Giuliani and Don Jr, who didn't tell the mob to march on the Capitol, and Trump and Brooks, who did.

Sibley keeps trying to move the goal posts by shouting. He's now arguing that the speeches were something akin to incitement to protest. Seems like a poor strategy with this judge.

2:30 Mehta says that we can infer Trump's intent from the fact that he didn't tell the mob to stop. Sibley yells some words about the First Amendment. I know he's a perfectly competent lawyer, but he doesn't seem particularly well prepared today.

Binnall back up to argue that Trump is a man of peace.

2:35 Mehta points out the eleventy-seven other things that Trump said which were not "peacefully and patriotically make your voices heard."

Binnall gets snippy, says if the court "recharacterizing" speech about protest as incitement, "then the court is going to be very busy."

Mehta shuts it down immediately. "That's not what we're doing ... words of incitement are not protected by the First Amendment."

Binnall says Maxine Waters "uses the word 'fight' a lot" and "uses inflaming rhetoric." (They chose a Black woman for an example? How shocking!)

Mehta: "Let's stick with the facts."

2:38 Mehta asks if an invitation to engage in tortious conduct, acceptance of that invitation, followed by that tortious conduct is sufficient to constitution a conspiracy.

Binnall seems kinda stumped.

Now Binnall says there is a First Amendment right to call for that tortious conduct.

2:40 Mehta asks "what am I supposed to do with" the fact that Trump didn't do anything for two hours to call off the rioters. Binnall makes a rational-ish argument that actions after the event can't be used to establish conspiracy. (Forget that Mehta asked about inferring intent.) Binnall then argues again that Trump is presidentially immune from suit for literally anything he says.

2:42 Oh, interesting, Mehta is talking about the Charlottesville Nazi verdict where one of the defendants (Richard Spencer?) was found guilty of conspiracy in part based on actions taken during and after the event.

Binnall pivots to saying that there can't be different laws for Democrats and Trump supporters.

Mehta: ?????

I believe Binnall is suggesting that such an interpretation of the statute would make BLM supporters liable for conspiracy to loot? But who the hell even knows.

2:50 Binnall is now arguing that congressional representatives and Capitol cops are not "officers of the United States" for the purpose of the KKK Act. He says the law only applies to executive appointees?

I mean ... you can try.

2:55 Oath Keepers lawyer Jonathon Mosely is up, says that the complaint hasn't sufficiently alleged conspiracy against his clients. Mehta says basically, didn't your clients and the Proud Boys agree to work together before you stormed the Capitol?

"Some people go to lunch, some people go beat on police." I believe this was an effort by the Oath Keepers lawyer to make it seem like there wasn't an agreement to take over the Capitol if not everyone did it?

Mehta points out that the Oath Keepers did not, in fact, go to lunch.

3:00 Ten minute break. I will brew more "Hot Cinnamon Sunset" tea, which sounds like a drink made from Fireball and Jägermeister, but is basically chai.

3:12 And we're back!

Sellers is up again to say why Binnall's and Sibley's arguments were dogshit.

3:18 Sellers points out that the case law suggests that courts have treated congressional representatives as federal officers for the purpose of the KKK Act.

Mehta asks why Trump's actions cross over from mere encouragement to conspiracy.

Sellers says that Trump "doubled down and retweeted his remarks from earlier" when the rioters were inside the Capitol, from which you can infer his intention and participation in the conspiracy.

3:23 Mehta says this doesn't map perfectly onto traditional conspiracy. Trump wasn't tweeting at the Oath Keepers directly, he was tweeting to his gazillion followers. There isn't a lot of alleged contact between the parties in this "conspiracy."

Sellers says every party doesn't have to be involved with every other, and the Oath Keepers and Proud Boys did conspire (allegedly).

Sellers says Trump had "a meeting of the mind with the crowd at the Ellipse" and used Twitter to broadcast his orders — orders which he and the listeners both understood to be part of the conspiracy.

Mehta: "Don't you think that argument is a little dangerous?" How do you base a conspiracy on the reaction of the listener?

3:24 Sellers says that it wasn't just the tweets, it was Trump telling the crowd to "fight like hell" as they brayed to "storm the Capitol. And then Trump "ratified it" by encouraging them as they invaded the building.

3:30 Sellers says that Giuliani was calling senators and congressional reps during the riot to encourage them to slow the count down, from which you can infer his support for the conspiracy. Mehta says that was later, when he called Sen. Tommy Tuberville.

The issue of timing was never really cleared up.

3:35 Malone, the cops' lawyer, is back up to talk about "ratification," that is Trump's post-speech conduct indicating his participation in the conspiracy.

He's making what seems to me like a weak argument about principal and agent liability. (Proving that the mob were Trump's agents is a heavy lift. That's more like a general contractor being liable for a plumber's screw up.)

Mehta: "Mr. Malone, is there something you want to point to in the complaint?"

Yeah, this one is going nowhere.

3:40 Mehta has questions for Swalwell's lawyer Philip Andonian. The issue is the possible differing levels of liability for Trump and Don Jr, Giuliani, etc.

Andonian points to statements on January 6, says "they have to be taken in the larger context," except for Trump and Brooks who explicitly called for violence.

Mehta suggests that Don Jr's stupid Instagram posts earlier in the week seem pretty far afield from the Brandenberg test, which requires immediacy.

Andonian is arguing that the comments were "directed toward January 6." This argument re Don Jr. is hella shaky.

3:45 Everyone in this hearing is TIRED.

Girl, same.

3:52 Sibley, Rudy's lawyer, says "how could we have conspired for a result if part of the evidence is people shouting 'let's storm the Capitol' after Rudy left the stage?" This is him saying that there was no conspiracy, or at least no conspiracy to commit violence. "It was a conspiracy to march to the Capitol," i.e. just to protest.

Mehta says what about Rudy calling members of congress and urging him to delay certification. Sibley counters that Rudy just wanted to delay certification to find the "fraud," not a ratification of the violence.

3:54 Binnall is making random word-shaped sounds. This will be good preparation for Mo Brooks.

3:57 OH, JFC! Everyone is done here, but the Oath Keepers' lawyer Mosely is back to barf out some words about "no conspiracy."

Mehta: "I'm not sure what documents you're referring to, Mr. Mosely."

Mosely: My guys' quotes in the government's motion were taken out of context.

Mehta: Well, there was a time to make this argument, and this ain't it.

4:04 They're on to the First Amendment issues.

Binnall says that the plaintiffs will turn all protest into a conspiracy. Judge Mehta basically tells him to knock it off since this decision is hard enough without muddying the waters.

Because it may be obvious to you and me that Trump intended the consequence of his words, but "conspiracy" is a legal term with a real definition, and this is a hard case.

Here's a hypo: If you tweet that "someone should commit a crime," and then a rando you never met before actually goes out and does it because you said so, are you responsible? Legally? Morally?

See? COMPLICATED.

4:08 The problem is that Binnall isn't a terrific First Amendment lawyer. Or any other kind of lawyer.

The country would be better served if we had serious people arguing these important cases.

Binnall just tried to blame Senator Bernie Sanders for Rep. Steve Scalise getting shot at the congressional baseball game, pissing off Judge Mehta even more.

NOT. SERIOUS. PEOPLE.

4:10 Mehta says it's "not appropriate" to suggest that his court would treat Democrats differently from Republicans.

Binnall is not backing down. What a fucking hack!

He's probably going to win, but it sure as hell won't be because of his strong arguments.

Binnall is now saying that First Amendment law doesn't take into account the truth or falsity of speech.

4:15 Jiminy fuckin' Christmas. This is painful.

Sibley says that the violence has to be predictable result of the speech: "By that argument, the Beatles were responsible for the Tate murders [by Charles Manson's followers]."

4:25 Mehta is back to trying to parse the case with Sellers. He's asking what happens to the case if the court finds that Trump's words don't rise to the level of incitement. Sellers says there's a conspiracy to commit violence, and Mehta points out that there is a strong First Amendment issue here.

Mehta seems to suggest that, if the language is not found to have risen to the level of incitement to riot, the cases have to be dismissed.

I know I said it like five minutes ago, but again: These issues are hard, and it would benefit the country if there were competent lawyers on both sides.

4:30 HOSANNA! We're skipping forward to Mo Brooks. Cats can have a little salami for a treat!

4:35 Brooks wants to read his remarks into the record, with "a little soda pop to lubricate" his sore throat. He sounds like shit.

Remember that Brooks is arguing that he was acting within the scope of his employment when he told the crowd to storm the Capitol and thus the DOJ must represent him.

Brooks thinks he's got a big GOTCHA that Reps. Maxine Waters and Pramila Jayapal objected to the certification of prior elections. Of course they didn't get sued and ask to be represented by the DOJ, but never mind that now.

4:38 Brooks says all comments on the election were within the scope of his employment. He's basically reading his brief in a painfully scratchy voice. It's BAD.

Judge Mehta is like MOVE IT ALONG, POPPY.

Judge Mehta asks whether this was actually campaign activity. Brooks said he didn't name a campaign, which is actually not what he said in his motions, where he argued that he wasn't inciting violence, he was hoping "to inspire listeners to start focusing on the 2022 and 2024 elections, which had already begun."

4:45 Judge Mehta is being very, very gentle with Brooks as a pro se litigant, even though Brooks is a lawyer.

Brooks is now saying that he can't answer questions about how telling the crowd to go storm the Capitol related to the certification of the election because it didn't occur to him that he'd have to address it. The court moves on.

Now Brooks is lecturing the court on not taking specific comments out of context, and saying he had to be there because the president asked him to and it was his job as a member of congress to do what the president said. (Is it, tho?)

Now Brooks is yelling about Congresswoman "Pamela" Jayapal filing an ethics complaint against him, which did not come to anything.

Judge Mehta: "Alright, Congressman."

4:49 Well, that was painful. Brooks is done.

Brian Boynton from the DOJ is up to say that the government doesn't have to pay for campaign activity, and Brooks has all but admitted that his comments were directed toward the 2022 and 2024 elections.

4:55 Mehta reads some of the portions of Brooks's speech which pertain to the rejection of electoral college votes, asks DOJ why that's not within his employment as a US congressman. Boyton says that's campaign activity, gets a lot of pushback from the court.

5:00 Judge Mehta is trying to tease out how to treat to a speech which combined comments about his job with comments that were clearly not.

Boynton says that a campaign speech is definitionally outside the scope of Brooks's employment as a congressman, and as such the entire speech is not part of his official duties.

5:05 Okay, shutting this live blog down. Swalwell's lawyers are still complaining that Brooks has the nerve to ask for taxpayers to subsidize his legal defense.

Judge Mehta still has to sit through another round of arguing about Trump's possible liability under DC statute. But it's enough already, let's put this thing to bed.

Good night, Gracie!


[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

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.

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