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Monday, August 15, 2022

Trump Lawyers Turn Jan. 6 Motions Hearing Into Yet Another Sh*tshow

(Photo by Win McNamee/Getty Images)

It was a long, weird day in DC federal court yesterday for litigants arguing a motion to dismiss in three Trump lawsuits arising out of the Capitol Riot.

The plaintiffs include two Capitol police officers and several House members, most notably Reps. Bennie Thompson and Eric Swalwell. In addition to the former president, they’re suing variously Rudy Giuliani, Donald Trump, Jr., far right groups the Oath Keepers and the Proud Boys, and Rep. Mo Brooks for obstructing them in their official duties and intentionally harming them by inciting the riot.

Rep. Brooks famously ducked Rep. Swalwell’s process server for weeks, and then demanded that the Justice Department represent him because he was carrying out his “official duties” when he exhorted the crowd at the Ellipse to march on the Capitol. The DOJ told him to go pound sand, because telling lies about a stolen election and exhorting a mob of lunatics to head to congress and “fight for America” like our ancestors who “sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives, to give us, their descendants, an America that is the greatest nation in world history” was not part of his duties as a congressman.

Brooks, who graduated from law school in 1978, responded with a bizarre affidavit filed on his own behalf insisting that he wasn’t encouraging violence, he was encouraging the crowd to “fight” in the 2022 and 2024 election cycles. As the DOJ immediately pointed out, this was an apparent concession that he was engaged in campaign activity, which is definitionally outside his official duties.

Brooks appeared yesterday as a pro se litigant, and was treated with kid gloves by US District Judge Amit Mehta, who made a much better case that the speech contained both campaign rhetoric and comments on Brooks’s official duties than the congressman was able to gin up on his own behalf.

Judge Mehta was significantly less gentle with Jesse Binnall, counsel for the former president, who repeatedly launched into Fox News-style broadsides against his “Democrat” opponents. After being reminded multiple times to confine himself to legal rather than rhetorical arguments, Binnall infuriated the court by suggesting that Sen. Bernie Sanders should be held liable for the actions of the gunman who shot Rep. Steve Scalise at a congressional baseball game.

Binnall took a similarly maximalist position on “presidential absolute immunity,” insisting that literally nothing a sitting president said could ever give rise to civil liability, since his every utterance, even at a campaign event, was part of his official duties. Which is a position you probably have to take when your client vomits out lies on the regular, along with calling women too ugly to rape. He also insisted that calling up the Georgia Secretary of State and telling him to “find votes” was part of his official duty to see that the laws are faithfully executed.

Patrick Malone, counsel for the Capitol Police pointed out the inherent illogic in Binnall’s position, which would immunize an incumbent candidate for saying something on the stump, while his rival could be sued for making an identical statement. And Cohen Milstein Sellers and Toll attorney Joseph Sellers, appearing on behalf of the congressional plaintiffs, argued that the correct standard for determining whether the speech was part of the president’s official duties is the voluminous body of regulation which guides public officials in segregating their campaign and official expenses.

Binnall’s howls about “one standard for Democrats and one for Republicans” may have been pleasing to his client, but they were plainly belied by the scrutiny Judge Mehta gave to the plaintiffs’ claims. To survive a motion dismiss they’ll have to plausibly allege a conspiracy between the defendants and rioters who descended on congress, and it looks to be an uphill climb.

Sellers leaned heavily into Trump’s post-speech tweets, in which he reiterated his earlier statements as the rioters had invaded the Capitol, and his two-hour silence, even as his family and staff exhorted him to tell the mob that he didn’t intend the violence. Sellers argued that these amounted to ratification, proving Trump’s intent to convey a message to his supporters. And while Judge Mehta seemed open to the argument that Trump’s refusal to call off the mob might be “enough to at least plausibly infer that the president agreed with the conduct of the people that were inside the Capitol that day,” he was clearly skeptical of the post hoc ratification by omission argument.

Similarly, the court seemed to suggest that the plaintiffs’ cases cannot survive if the speeches at the Ellipse don’t satisfy the Brandenberg standard for incitement. That is, if there was no incitement, then the speakers cannot be liable for the harms perpetrated by the listeners. Which is good news for Giuliani and Don Jr., who have said plenty of crazy shit, but who happened to be slightly less incendiary on January 6 than Brooks and Trump himself. For instance, the plaintiffs would like to cite an Instagram post by Don Jr. days before the event as evidence of his intent to rouse the crowd to violence, but that likely falls outside the Brandenberg requirement for immediacy.

All in all, it was probably a good day Team Trump, not because of, but in spite of their attorneys’ antics, much less the quality of their arguments.

Swalwell v. Trump [Docket via Court Listener]
Thompson v. Trump [Docket via Court Listener]
Blassingame v. Trump [Docket via Court Listener]


Liz Dye lives in Baltimore where she writes about law and politics.

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