Joseph Seller, arguing for all of the plaintiffs, argued that “Mr. Trump dispatched the crowd that he assembled,” and beyond that, did nothing to stop them—and egged them on. “After he saw that they were engaged in breaking into the Capitol, instead of trying to calm them, he retweeted his incendiary remarks from the rally before.”
It was a compelling argument for Mehta, who asked Binnall whether his delay in trying to calm the crowd after he told them to “fight like hell” didn’t demonstrate his agreement with the siege. “You have an almost two-hour period in which the president doesn’t take to Twitter or to any other type of communication and say: ‘Stop. Get out of the Capitol,’” the judge said. “If my words were misconstrued and they led to violence, wouldn’t a reasonable person whose words were being misconstrued come out and say: ‘Wait a minute. Stop’?”
Again, Binnall argued what Trump had said was that the crowd should “peacefully and patriotically” march on the Capitol, and that the cases “should be dismissed because they never should have been brought in the first place,” because they are “void of any legal basis. Instead, they’re chock-full of propaganda that’s meant to achieve a political rather than a legal objective.”
Mehta acknowledged that there are sticky constitutional questions in trying to hold a sitting president accountable in civil court. “This is not an easy case,” he said. “I’ve struggled with a lot of these issues because they raise a lot of important constitutional questions.”
Sellers, the plaintiff’s lawyer, argued in filings that “The First Amendment does not protect the military-style incursion into the Capitol led by the Oath Keepers; nor does it shield Trump and Giuliani’s incendiary remarks, which aroused and mobilized the assembled crowd with the purpose, and having the effect, of violently disrupting official proceedings of Congress.”
“As part of this unified plan to prevent the counting of Electoral College votes,” the lawsuit from House members states, “Defendants Proud Boys and Oath Keepers, through their leadership, acted in concert to spearhead the assault on the Capitol while the angry mob that Defendants Trump and Giuliani incited descended on the Capitol. The carefully orchestrated series of events that unfolded at the Save America rally and the storming of the Capitol was no accident or coincidence. It was the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College.”
Swalwell filed his suit in March of last year, suing Trump, Donald Trump Jr., Giuliani, and Brooks using the same civil rights law as the House members’ suit, but also argues that Trump et al. broke the anti-terrorism act and other D.C. laws, that they aided and abetted the violence, and that they inflicted emotional distress on members of Congress. “The Defendants, in short, convinced the mob that something was occurring that—if actually true—might indeed justify violence, and then sent that mob to the Capitol with violence-laced calls for immediate action,” the lawsuit, in Washington, D.C.’s federal District Court, alleges.
“Trump directly incited the violence at the Capitol that followed and then watched approvingly as the building was overrun,” the lawsuit said. “The horrific events of Jan. 6 were a direct and foreseeable consequence of the Defendants’ unlawful actions. As such, the Defendants are responsible for the injury and destruction that followed.”
The officers, who were injured in the attack, want Trump held responsible for inciting the crowd. The suit alleges Trump “inflamed, encouraged, incited, (and) directed” the attackers. Hemby “was crushed against the doors” of the Capitol, was “sprayed with chemicals” and bled from his face, the lawsuit says, while Blassingame claims head and back injuries from being slammed against a stone column. They are seeking a minimum of $75,000 each in damages.
“Defendant’s followers, already primed by his months of inflammatory rhetoric, were spurred to direct action,” the lawsuit from the officers alleges. “Had Trump committed directly the conduct committed by his followers, it would have subjected Trump to direct liability.”
The defendants—the Trumps, Brooks, Giuliani, the Proud Boys, and Oath Keepers—asked the judge to dismiss the suits. Trump’s lawyers argue that allowing the suits to go forward would “drastically” chill First Amendment-protected political speech and would—this is rich coming from Trump—“prompt dozens of lawsuits aimed at damaging electoral opponents.” Trump and his allies filed more than five dozen suits challenging President Joe Biden’s 2020 win.
Mehta did not rule Monday, nor did he give any indication of how he might rule in his questioning of the attorneys.