Toobin: This issue is 'front and center' in this case (cnn.com)
A federal judge in Washington, D.C., is questioning former president Donald Trump’s actions during his speech on January 6, 2021, as he considers for the first time whether Trump is immune from liability related to his supporters attacking the U.S. Capitol. During a court hearing Monday, Judge Amit Mehta pointed out repeatedly that Trump on January 6 asked the crowd to march to the Capitol, but that he didn’t speak up for two hours asking people to stop the violence. “The words are hard to walk back,” Mehta said. “You have an almost two-hour window where the president does not say, ‘Stop, get out of the Capitol. This is not what I wanted you to do.’”
“What do I do about the fact the president didn’t denounce the conduct immediately…and sent a tweet that arguably exacerbated things?” the judge asked. “Isn’t that, from a plausibility standpoint, that the president plausibly agreed with the conduct of the people inside the Capitol that day?”
The major hearing on Monday is part of a trio of insurrection-related lawsuits seeking to hold Trump and other Republican figures like Rep. Mo Brooks of Alabama accountable at a time when the House select committee probing January 6 has aggressively investigated the political leaders who inspired the attack, and as the Justice Department is prosecuting more than 700 rioters for criminal offenses.
As Mehta noted, if Trump didn’t mean for his supporters to literally “fight” the election results at the Capitol, as his allies have suggested, he had plenty of time to tell them to stop. “Wouldn’t somebody who’s a reasonable person say, ‘That’s not what I meant?’” Mehta asked a lawyer arguing against the insurrection lawsuits. As we of course know by now, not only did Trump not say anything for hours as lawmakers at the Capitol came under attack, he even refused pleas, including from his children, to take action, only much later telling the rioters to “go home,“ and in the same breath, “You’re very special” and “we love you” and, shortly after that, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.” Last Thursday, on the anniversary of the January 6 attack, former White House press secretary Stephanie Grisham said that Trump “gleefully” watched it unfold on TV, remarking, “Look at all of the people fighting for me,” and hitting rewind to watch again. Republican senator Ben Sasse said in an interview days after the attack that the president “was walking around the White House confused about why other people on his team weren’t as excited as he was.… He was delighted.”
Mehta’s line of questioning is a foreboding sign for Trump, at least as people seek damages through civil litigation following the insurrection. Some of the lawsuits at issue use a civil rights law, commonly called the KKK Act, that allows for lawsuits when officials are intimidated from doing their public duties. It is the first major test of whether civil litigation is a viable route to holding Trump accountable for the violence toward Congress, after he was acquitted by the Senate in his second impeachment trial last February.
Democratic Rep. Eric Swalwell of California, 10 other House Democrats, and Capitol Police officers James Blassingame and Sidney Hemby brought the three lawsuits at issue on Monday. The lawmakers say they were threatened by Trump and others as part of a conspiracy to stop the congressional session that would certify the 2020 presidential election on January 6, according to the complaints. And they argue that Trump should bear responsibility for directing the assaults.
In their suits, the officers say the rioters who hit them with chemical spray and objects were inspired by Trump to do so. “Defendant’s followers, already primed by his months of inflammatory rhetoric, were spurred to direct action,” Blassingame and Hemby’s lawsuit reads. “Had Trump committed directly the conduct committed by his followers, it would have subjected Trump to direct liability.“ There are six other civil lawsuits seeking to hold the then president and others responsible for the attack, CNN noted.
Trump’s lawyer, naturally, has argued that every word that came out of Trump’s mouth between January 20, 2017, and January 20, 2021, should be immune from liability because they were part of his official actions as president. (As a reminder, lawyers for Trump also once argued that he could shoot a random pedestrian and not be criminally investigated until leaving office.) And, at the moment, Mehta does not appear to be buying it. “You would have me ignore what [Trump] said in its entirety?” the judge asked incredulously, pointing to a Supreme Court case that established the limits of presidential immunity. “To say that a speech before Congress is the equivalent to a campaign trail stump speech” doesn’t appear to be what the Supreme Court ruled on the parameters of presidential immunity, Mehta said.
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