Major court hearing to test whether Trump could be responsible for January 6

In a court hearing on Monday, Judge Amit Mehta repeatedly pointed out that Trump asked the crowd on Jan.6 to march to the Capitol, but did not speak for two hours to ask the people to stop violence.

“It’s hard to go back on words,” Mehta said. “You have a window of almost two hours where the president doesn’t say, ‘Stop, get out of the Capitol. That’s not what I wanted you to do.’”

“What should I do about the fact that the president didn’t report the conduct immediately… and sent out a tweet that arguably exacerbated it?” Asked the judge. “Isn’t it, plausibly, that the President plausibly agreed with the conduct of the people inside the Capitol that day?”

Mehta did not rule at the end of the nearly five o’clock hearing on Monday and rarely showed which side he was leaning on. He pointed out to the dozen or so people on the call, including several members of Congress, that it was no easy task.

The major hearing is part of a trio of insurgency-related lawsuits seeking to hold Trump and other Republican figures like Representative Mo Brooks of Alabama accountable as the House special committee investigating the Jan. 6 aggressively investigated the political leaders who inspired the attack, and that the Justice Department is prosecuting more than 700 rioters for criminal offenses.

Mehta’s line of questioning is a worrying sign for Trump, at least as people seek damages in civil litigation following the insurgency. Some of the prosecutions at issue use a civil rights law, commonly known as the KKK law, which authorizes prosecutions when public officials are intimidated in the performance of their public duties.

This is the first major test of whether civil litigation is a viable avenue for holding Trump accountable for violence against Congress, after he was acquitted by the Senate in his second impeachment trial last February.

If Trump’s call to action at the rally was misinterpreted by the crowd and they still turned violent, “Wouldn’t someone who is a reasonable person say, ‘It’s not what I wanted to say? “” Mehta asked a lawyer opposing the insurgency prosecution. The judge pointed out that even Donald Trump Jr., another accused in court on Monday, texted the White House chief of staff before Trump spoke, asking the president to condemn the violence.

Trump and his close supporters say they are protected by the First Amendment, that Trump and others spoke on January 6 as public officials and did not agree to be part of a conspiracy with the mob violent under the law.

Trump’s attorney, Jesse Binnall, argued that anything Trump said while president should be immune from liability – including January 6 as well as in an appeal to Georgian officials asking them to to “find” votes in early 2021 and at election rallies – – and is protected from prosecution, as it was all part of his official actions as president.

Binnall also argued that Trump encouraged the crowd to act “peacefully and patriotically.”

“You would like me not to know what [Trump] said in its entirety? ”Mehta asked for the minutes of the hearing. The judge pointed to a Supreme Court case related to the Johnson and Nixon administrations that established the parameters for presidential immunity.

“To say that a speech in Congress is equivalent to a campaign speech” does not appear to be what the Supreme Court ruled on the limits on presidential immunity, Mehta said.

Democratic Representative Eric Swalwell of California, 10 other House Democrats and Capitol Hill police officers James Blassingame and Sidney Hemby filed the three lawsuits in question on Monday.

Lawmakers say they have been threatened by Trump and others as part of a plot to shut down the session of Congress that would certify the 2020 presidential election on Jan.6, according to the complaints. And they argue that Trump should take responsibility for leading the assaults.

Swalwell, who described his position on the case in a CNN interview on Sunday, said he expects Monday’s hearing to be long. He noted, however, that he and others would not be allowed to enter the courtroom due to the recent increase in Covid-19 cases. Instead, participants will speak to the judge via video conference.

If the judge rules in favor of Swalwell and others who have taken legal action, the California Democrat has said he expects “this will accelerate, and I hope we will pass. very soon to more depositions and discoveries of evidence “.

Police officers, in their trial, say they were hit by chemical sprays and objects thrown at them by the crowd, such as water bottles and signs, because Trump inspired the crowd.

“The defendant’s supporters, already prepared by his months of inflammatory rhetoric, have been urged to act directly,” said the trial of Blassingame and Hemby. “If Trump had directly committed the conduct of his supporters, it would have placed Trump under direct responsibility. “

Six more lawsuits against Trump and others for their role in the insurgency are also before the same tribunal, but have yet to reach the point of litigation.
In the three cases before Mehta on Monday, the defendants include Trump, Brooks, Donald Trump Jr., Rudy Giuliani and the right-wing groups the Proud Boys and the Oath Keepers. In court, they distance themselves from the crowd’s actions on January 6 and ask Mehta to close the cases. According to Trump’s arguments, allowing the prosecution to go ahead would “drastically” curb political discourse and trigger dozens of lawsuits aimed at harming electoral opponents.

Trump and his top advisers have not been charged with any crimes. Several Proud Boys and Oath Keepers leaders who have been criminally charged with conspiracy have pleaded not guilty.

Congressman defends himself

In an unusual situation for a court hearing, Brooks defended himself on Monday, saying he was acting as part of his job as a congressman when he warmed up the pro-Trump crowd on January 6.

The Justice Department argued that Brooks should be alone as he is being sued – not to be protected by the government, as his speech was at a campaign event and he was defending Trump.

When asked on Monday if Brooks had spoken out as a way to campaign for Trump, he said he would “reject him.” “Name the campaign,” he added, echoing claims by Trump’s lawyers that Trump’s 2020 campaign ceased to exist when he lost the election in November and spoke as President.

Brooks maintains that his Jan. 6 speech – when he called for a “kick ass” of Congress – was generally about the Electoral College certification vote scheduled for that day.

Mehta seemed somewhat sympathetic to Brooks’ position. If he rules in his favor, it could allow Brooks to pay damages related to the injury claims that Democratic members of Congress and the police are suing.

The judge, questioning the Department of Justice, quoted portions of Brooks’ speech where he spoke of the Congressional vote scheduled for that day.

It is common for even outside lawyers to plead cases when their clients are suing or being sued, even if the clients themselves are lawyers.

Brooks appeared to be speaking from his desk during the videoconference with the court. When he was not speaking, he wore a black mask to cover his nose and mouth, printed with two words in red: “Freedom of expression”.

Calls to battle

The Democratic representatives’ cases focus specifically on the language used by Trump, Brooks and others at the “Stop the Steal” rally on the Ellipse in Washington, DC, just before the attack.

Trump told the crowd to “show strength” and “walk down Pennsylvania Avenue,” for example, while Brooks, in his speech, said: “Today is the day that American patriots begin to notice problems. names and kick ass. Also at the rally, Giuliani told the crowd to have “a trial through combat”.

After the speeches, hundreds of participants in the pro-Trump rally marched to Capitol Hill, severely beating law enforcement officers guarding the building and going through barricades and windows to enter. Many then ransacked the offices of Congress and some chanted the “betrayal” as they passed the Senate Chamber, from where lawmakers and then Vice President Mike Pence had been evacuated minutes before .

“The president was very clear that he was there at the Ellipse as president,” Binnall said in court on Friday. “He was arguing whether or not Congress would take certain steps.… We are at the center of immunity.”

After the Senate voted not to convict Trump last February, Senate Minority Leader Mitch McConnell said the prosecution was a way of retaliation.

The Kentucky Republican said Trump was “still responsible for everything he did while in office” and noted “we have a civil dispute” that a president would not be immune to.

Lawsuits could take months, or even years, to see resolutions.

This story has been updated with details of the court hearing.

Sarah Fortinsky of CNN contributed to this report.

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