WASHINGTON — Donald Trump cannot be sued for pretty much anything he said while he was in the White House, including his speech on Jan. 6 that preceded the attack on the US Capitol by his supporters and his tweets throughout the day, a lawyer for the former president argued in court on Monday.
Less than a week after the one-year anniversary of the Capitol riot, a federal judge in Washington, DC, considered the fate of three civil lawsuits seeking to hold Trump and his allies responsible for the attack — specifically, conspiring to interfere with Congress’s certification of the 2020 election results and incite violence against police officers who tried to protect the Capitol complex.
US District Judge Amit Mehta asked questions that suggested he was at a minimum skeptical of Trump’s sweeping argument that he was immune against being sued for nearly anything he’d said during his four years as president. But Mehta also said during the hearing that he was struggling with whether the core conspiracy claim could go forward based on the facts laid out in the lawsuits, and whether comments by Trump and some of his other high-profile supporters on Jan. 6 were covered by the First Amendment’s free speech protections.
It was the second time in just over a month that a court considered the argument that Trump couldn’t personally be sued over things he said while he was president. In early December, a federal appeals court in New York weighed efforts by Trump, backed by the Justice Department, to have the US government take over his defense against a defamation lawsuit filed by the writer E. Jean Carroll. A lower court judge had rebuffed the argument that Trump was acting within the scope of his official duties when he said Carroll was lying after she accused him of raping her more than two decades ago. The appeals court has yet to rule.
Trump isn’t trying to involve the Justice Department in his defense against the growing number of lawsuits seeking to hold him responsible for the events of Jan. 6. He’s broadly arguing that he’s protected by a legal doctrine that shields sitting presidents from being sued over actions they take as part of the job. Arguments on Monday focused on three of the cases: one brought by a group of congressional Democrats, one brought by Democratic Rep. Eric Swalwell, and one brought by two US Capitol Police officers.
A ruling from Mehta won't end the legal wrangling over Trump’s civil liability for the insurrection. If Trump fails to convince Mehta to toss these first three cases, he could ask an appeals court and potentially the US Supreme Court to intervene. If Trump succeeds at this stage, the plaintiffs could appeal. And there are four other civil lawsuits pending that accuse Trump of inciting the violence, plus one filed before Jan. 6 that accuses Trump of conspiring with the Republican National Committee to violate the rights of Black voters by trying to undermine the results of the election.
Trump’s lead attorney, Jesse Binnall — a Virginia-based lawyer representing Trump in an array of postpresidency legal fights, and who counts Trump ally Michael Flynn as a former client and conservative attorney and activist Sidney Powell as a former co-counsel — argued Monday that presidential immunity extended to the “outer perimeters” of a president’s actions while in office.
Mehta asked if Binnall wanted the judge to ignore the content of what Trump said on Jan. 6. Binnall replied yes, explaining that what mattered for immunity was the type of act at issue, which in this case was a speech to the American people, something that is part of being president.
Mehta pushed back, pointing out that the lawsuits alleged that Trump had appeared at the Jan. 6 rally to advance his personal interests as a candidate for office. The judge asked Binnall why that wouldn’t place Trump outside the immunity that’s meant to protect a president against being sued for actions that were part of their official duties. Binnall argued that there was too much overlap between a president’s duties and political motivations to try to draw a clear line. Even if campaign activities weren’t covered by the immunity, Binnall said, Trump’s speech on Jan. 6 was not part of his campaign.
The judge then asked about reports that Trump had contacted Georgia’s top election official to ask him to “find” votes to overturn President Joe Biden’s win in the state. Mehta asked Binnall if presidential immunity would apply to that type of phone call. Binnall said it would because a president had a constitutional duty to ensure laws were faithfully executed. When the judge noted that part of the Constitution didn’t apply to state laws, Binnall said that when it came to federal elections, state and federal functions merged.
Mehta asked if a president would get immunity if they made defamatory statements at a campaign rally. Binnall said yes.
The judge then asked if there was anything a president could say while they were in office that they could be sued for. Binnall said he’d tried to think of examples and could not.
On the substance of the lawsuits, Mehta said that the plaintiffs had alleged a “very unusual” and “problematic” conspiracy. Taken together, the cases accused Trump of conspiring with high-profile allies like Rudy Giuliani as well as extremist groups whose members are being criminally prosecuted for storming the Capitol. The judge noted that the lawsuits didn’t feature the kind of direct communication among co-conspirators that would normally be part of a case like this. He expressed concern that it would be “dangerous” to build a conspiracy case off of reactions to political speech.
Joseph Sellers, an attorney for the congressional Democrats suing Trump who argued on behalf of all three sets of plaintiffs on Monday, maintained that the lawsuits did lay out facts that alleged a “meeting of the minds,” and not just a one-sided reaction to Trump’s speech. He said that Trump’s supporters engaged with his social media posts leading up to Jan. 6 about coming to Washington, that Trump urged the crowd to go to the Capitol even as people yelled out about storming and invading the building, and that Trump failed to immediately try to stop the riot, which could be seen as proof that he endorsed the mob.
Sellers said that the law didn’t require them to show direct communication among all of the defendants, and he pointed out that they had presented facts that alleged coordination between two right-wing groups named in one of the cases, the Oath Keepers and the Proud Boys. Mehta acknowledged that was true, but noted that the plaintiffs would likely be disappointed if he allowed the conspiracy claims against those groups to go forward but dismissed them against Trump.
Mehta is deeply familiar with the Justice Department’s theories so far on the role that members of the Oath Keepers played on Jan. 6. He’s presiding over a large conspiracy case that prosecutors have brought against members of the group; charges are pending against 17 defendants, and four defendants have pleaded guilty and are cooperating with the government. The Oath Keepers have a pending motion to dismiss the Democrats’ civil lawsuit they’re named in, and Mehta is considering that as well.
During an exchange with Binnall about the future of the conspiracy claim against Trump, Mehta asked about the fact that Trump didn’t tweet or put out other public statements telling the mob to stop immediately after the attack had begun. Binnall said that a president couldn’t be liable for not taking a certain action. The judge countered that Trump’s public silence could support the idea that Trump understood he was part of an agreement to disrupt Congress’s activities on Jan. 6. Mehta also drew a comparison to a civil lawsuit against organizers of the “Unite the Right” rally in Charlottesville, Virginia, in 2017 that turned violent; a jury last year found white nationalist Richard Spencer and others liable for conspiring to incite racially motivated violence.
Mehta on Monday also considered whether claims lodged against Donald Trump Jr. and Giuliani, who were named as defendants in Swalwell’s case, could go forward. Mehta suggested there wasn’t as much of a record of Trump Jr. making public calls to action to the same extent as his father, and referenced public reports that Trump Jr. had messaged Trump’s chief of staff at the time, Mark Meadows, to try to get Trump to stop the mob.
Near the end of the hearing, Mehta heard arguments on defendant Republican Rep. Mo Brooks’ effort to have the US government step into the case on his behalf, based on the argument that he was acting in his official capacity when he spoke at the Jan. 6 rally. The Justice Department has opposed stepping in on his behalf.