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U.S. judge rejects Trump claim of ‘absolute immunity’ from Jan. 6 lawsuits

Court finds former president encouraged and plausibly incited Jan. 6 violence as alleged in suits by House Democrats and Capitol Police officers, but drops Donald Trump Jr., Rudy Giuliani and Rep. Mo Brooks.

Trump supporters participate in a rally Jan. 6, 2021, in Washington. (John Minchillo/AP)

A federal judge on Friday sweepingly rejected former president Donald Trump’s claim of “absolute immunity” from lawsuits accusing him of inciting the violent Jan. 6, 2021, Capitol riot, finding that there was evidence to plausibly suggest that he engaged in a conspiracy with organized groups to intimidate Congress into overturning the results of the 2020 election.

In a searing, 112-page opinion that quoted repeatedly and at length from the former president’s own public statements, U.S. District Judge Amit P. Mehta refused to dismiss three lawsuits against Trump by Democratic House members and police officers seeking damages for physical and emotional injuries they incurred in the assault. The judge did or said he would drop as defendants Donald Trump Jr., attorney Rudolph W. Giuliani and Rep. Mo Brooks (R-Ala.), who joined Trump in addressing rallygoers at the Ellipse before they marched to the Capitol that day.

However, Mehta said Trump’s own words and conduct in falsely alleging a “stolen” election were not immune on separation-of-powers grounds because they served only his personal aim of retaining office, falling beyond the “outer perimeter” of a president’s official responsibilities.

“The President’s actions here do not relate to his duties of faithfully executing the laws, conducting foreign affairs, commanding the armed forces, or managing the Executive Branch. They entirely concern his efforts to remain in office for a second term. These are unofficial acts,” Mehta wrote.

Read the judge's opinion here

At the same time, the judge said, Trump allegedly went beyond simply trying to pressure state and local officials, Congress, or Vice President Mike Pence to overturn lawful election results. Rather, the judge said, he raised the threat of violence, culminating in the attack that delayed Congress’s certification of President Biden’s election victory, led to assaults on nearly 140 officers and contributed to five deaths.

Trump’s statements in the weeks, hours and minutes before the attack on the Capitol were plausibly “an implicit call for imminent violence or lawlessness,” the judge ruled.

“He called for thousands ‘to fight like hell’ immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence,” the judge said.

Trump’s role “was to encourage the use of force, intimidation or threat to thwart the Certification from proceeding, and organized groups such as the Proud Boys and the Oath Keepers would carry out the required acts,” the judge said. Such a “tacit agreement” is made all the more plausible by Trump’s response to the Capitol breach, when he attacked Pence on Twitter for not having the courage to block the certification after rioters broke into the building.

Police officers who defended the Capitol on Jan. 6 testified before Congress on July 27 about their experiences. (Video: Blair Guild/The Washington Post)

“It is reasonable to infer that the President would have understood the impact of his tweet, since he had told rallygoers earlier that, in effect, the Vice President was the last line of defense against a stolen election outcome,” Mehta wrote.

Analysis | The president, the extremists and the conspiracy to storm the Capitol

The decision by Mehta, an appointee of President Barack Obama who is also presiding over the seditious conspiracy prosecution of Oath Keepers founder Stewart Rhodes, was a defeat for the former president, who moved to dismiss three lawsuits: one by Rep. Karen Bass (D-Calif.) and nine other lawmakers; one from Rep. Eric Swalwell (D-Calif.), a former prosecutor and Trump impeachment manager; and another from Capitol Police officers James Blassingame and Sidney Hemby. The initial lawsuit was brought by Rep. Bennie G. Thompson (D-Miss.), who left his case in July after becoming co-chair of the Jan. 6 House select committee.

The opinion allows for further fact-finding — including depositions and document demands of the former president and other co-defendants, which include members of the Oath Keepers and the Proud Boys. Discovery might prove such connections “to be an important one,” Mehta wrote.

Trump attorney Jesse Binnall in arguments last month cast the lawsuits as “chock full of propaganda that are meant to achieve political rather than legal objectives.” Binnall urged the court to deny House Democrats the opportunity “to score points against a political rival at the expense” of the Constitution’s bedrock principles of separation of powers and freedom of speech.

Separately, Giuliani’s defense called it “too far-fetched and outlandish” to believe the plaintiffs would successfully tie him and Trump to “a vast conspiracy to mastermind the attack on the Capitol.” Attorney Joseph D. Sibley IV argued that Giuliani’s call to Trump supporters that day for “trial by combat” was clearly hyperbolic and not literal, that he immediately condemned the riots as “shameful” and that he never referred to a march on the Capitol.

Sen. Klobuchar (D-Minn.) and Rep. Lofgren (D-Calif.) discuss what's being done to protect the U.S. Capitol after the Jan. 6 insurrection. (Video: The Washington Post)

Mehta in his ruling acknowledged that he “put Giuliani in a different position.” The judge dropped Giuliani and Donald Trump Jr. as defendants from Swalwell’s suit, and said he would do so similarly for Brooks, saying their alleged actions were limited to less incendiary statements at a fiery rally that morning at the White House Ellipse.

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?”

Mo Brooks urged a Jan. 6 crowd to ‘fight.’ Now his actions long before the insurrection face new scrutiny.

House lawmakers’ legal team, led by Joseph M. Sellers and joined by attorneys for the NAACP, argued in alignment with lead Swalwell attorney Phil Andonian, that Trump 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. Police officers asserted that Trump and others should also be 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.

In seeking dismissal, Trump’s defense argued that Trump’s statements at the Jan. 6 rally and any other related tweets and public statements fell “dead-center” within his constitutional duty to ensure that 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.”

Mehta called that argument “grossly misleading,” noting that the federal government’s role is to ensure election integrity through litigation, and that a president has absolutely no constitutional or statutory role in the counting or certification of the electoral college results.

A president’s statements are not immune from a civil suit just because they are spoken by a president, Mehta added.