The Washington PostDemocracy Dies in Darkness

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

Proud Boys members Joseph Biggs, left, and Ethan Nordean, right with megaphone, walk toward the U.S. Capitol on Jan. 6, 2021, in support of President Donald Trump. (Carolyn Kaster/AP)

There were three things that jumped out at me from D.C. District Judge Amit Mehta’s decision that lawsuits targeting former president Donald Trump and two extremist organizations could move forward.

That is, three things beyond this remarkable paragraph:

“ … the court concludes that the Complaints establish a plausible §1985(1) conspiracy involving President Trump. That civil conspiracy included the Proud Boys, the Oath Keepers, [Proud Boys leader Enrique] Tarrio, and others who entered the Capitol on January 6th with the intent to disrupt the Certification of the Electoral College vote through force, intimidation, or threats.”

Before moving forward, it’s very important to qualify those sentences in two ways. The first is that Mehta is not saying that this conspiracy was proved; rather, that it was not implausible that it might be. It’s the difference between going to trial and reaching a verdict. The second important qualifier is that Mehta is describing only a civil conspiracy, in keeping with the nature of the lawsuits (brought by several members of Congress) that he was considering.

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A civil conspiracy, Mehta writes, does not require that conspirators “entered into any express or formal agreement, or that they directly, by words spoken or in writing, stated between themselves what their object or purpose was to be, or the details thereof, or the means by which the object or purpose was to be accomplished.” They don’t need to know all the details of any plan or all of those participating in affecting it. They need only have come “to a mutual understanding to try to accomplish a common and unlawful plan … [the] general scope of which were known to each person who is to be held responsible for its consequences.”

The evidence at hand, Mehta concluded, suggests that such a conspiracy may have been in place between Trump and members of those right-wing extremist groups.

There’s no question, of course, that Trump encouraged people to be in Washington on that day (an encouragement known to have been acknowledged by members of those extremist groups) and there’s no question that he repeatedly directed his supporters’ anger at Vice President Mike Pence and members of Congress who were meeting in the Capitol. There has been no proven indication that Trump had any direct connection with the extremist groups (though Mehta noted that details like longtime Trump ally Roger Stone having been seen with the Oath Keepers on the morning of Jan. 6 “might prove … to be important”). But by the standard above — a legal one that doesn’t necessarily comport with common usage of “conspiracy” — those actions suggest possible culpability.

Mehta’s argument is fleshed out by highlighting a number of less-recognized elements of the period before the Capitol was overrun, including the three that struck me.

The first was his mention of the previous incidents of violence in Washington. In November and December, Trump supporters came to Washington to protest and, each time, scattered incidents of violence broke out afterward as members of the Proud Boys skirmished with counterprotesters.

“On the evening of November 14, 2020, multiple police officers were injured and nearly two dozen arrests were made,” the ruling reads. “Then, on December 12, 2020, supporters of the President clashed with District of Columbia police, injuring eight of them, which led to over 30 arrests, many for acts of assault. The President was aware of these rallies, as he tweeted about them, and he would have known about the violence that accompanied them.”

In other words, there was every reason for Trump to believe that a protest on his behalf in Washington might attract extremists and that those extremists might then engage in violence. It certainly casts a different light on White House Chief of Staff Mark Meadows’s statement that the National Guard would “protect pro Trump people” on Jan. 6.

The second thing that stood out to me was Mehta’s repeated isolation of Trump’s having advocated for attendees at his rally to march to the Capitol.

This is something I’ve written about repeatedly. There were several events planned for the day of Jan. 6, including the speech at the Ellipse outside the White House and a rally on Capitol Hill afterward. Permitting for the rallies indicated that there might be some movement between the White House and the Capitol but that a march wasn’t authorized. When Trump explicitly called for rally attendees to march to the Capitol during his speech, he guaranteed (if unintentionally) that there would be a massive imbalance of protesters to law enforcement at the scene, allowing the Capitol to be more easily breached.

Importantly, that call to head to the Capitol surprised other organizers. One, Dustin Stockton, told the New York Times that “the plan had been to stay at the Ellipse until the counting of state electoral slates was completed.” There had been internal deliberations about the idea, which Stockton believed had been resolved toward staying near the White House. When he heard Trump call for people to head to the Capitol, Stockton worried that it “felt unsafe.” The march, Mehta says, was an addition made by Trump and his campaign.

“[I]t 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,” Mehta writes. In other words, even if he didn’t know that was the Oath Keepers’ and the Proud Boys’ specific plan, it might certainly be part of a “mutual understanding” of what the day’s desired outcome was.

Mehta analyzes Trump’s encouragement of the crowd during the speech that morning at length. While Trump has long pointed to his mention of supporters “peacefully and patriotically” making their voices heard, Mehta notes that that was offset by his more frequent, angrier exhortations. (He also set aside Trump’s argument that his speech and his broader claims about voter fraud were protected as part of his duties as president. After all, he wrote, an effort to “secure or perpetuate incumbency” is not a function of the presidency.)

The third thing that struck me was Mehta’s isolation of Trump’s use of “we” language. Trump did this a lot as president, and still does. It’s part of what endears his audience to him; they often see him as fighting for their collective interests more than his own. On the morning of Jan. 6, though, Trump’s incessant use of “we” — “All Mike Pence has to do is send it back to the states to recertify, and we become president,” “we’re going to walk down,” etc. — bolsters the conspiracy question.

“ ‘We’ used repeatedly in this context implies that the President and rally-goers would be acting together towards a common goal,” Mehta writes. “That is the essence of a civil conspiracy.”

The ruling includes a breadth of other information and allegations, most of which will be familiar to those paying close attention to the events of the day. But it is unusual in the way it directly connects Trump to the distributed effort to block the counting of electoral votes.

At one point, Mehta summarized Trump’s actions succinctly.

“For months, the President led his supporters to believe the election was stolen. When some of his supporters threatened state election officials, he refused to condemn them. Rallies in Washington, D.C., in November and December 2020 had turned violent, yet he invited his supporters to Washington, D.C., on the day of the Certification. They came by the thousands. And, following a 75-minute speech in which he blamed corrupt and weak politicians for the election loss, he called on them to march on the very place where Certification was taking place.”

None of this suggests that Trump will necessarily lose the civil cases that have been brought against him. It doesn’t prove that the civil conspiracy outlined by Mehta will be proved to the satisfaction of a jury. But it is striking to read a document written by a federal judge in which he finds reason to believe that a sitting president may have conspired with violent extremists to retain power.

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