WASHINGTON — Former president Donald Trump on Friday lost his effort to get a set of lawsuits tossed out that seek to hold him responsible for the violence at the Capitol on Jan. 6, with a judge rejecting Trump’s claims of absolute immunity and protection under the First Amendment.
In a 112-page opinion, US District Judge Amit Mehta found that it was “plausible” to allege that Trump would have known that his supporters — including members of the Oath Keepers and Proud Boys extremist groups named as his codefendants — were prepared to commit violence on his behalf, and that on Jan. 6 he delivered a “call to action.”
Sitting presidents are generally immune from being sued for their official actions, the judge wrote, but Trump’s tweets urging his supporters to come to Washington to support his false claims of voter fraud, followed by his rally speech urging the crowd to “fight” and telling them to go to the Capitol, did not fall under that umbrella.
“Based on these allegations, it is reasonable to infer that before January 6th the President would have known about the power of his words and that, when asked, some of his supporters would do as he wished. On January 6th they did so,” Mehta wrote. “When he called on them to march to the Capitol, some responded, ‘Storm the Capitol.’ Thousands marched down Pennsylvania Avenue as directed. And, when some were inside the Capitol, they told officers, ‘We were invited here by the President of the United States.’”
The ruling, which Trump is expected to appeal, preserves a trio of lawsuits filed by Democrats in Congress and US Capitol Police officers that accuse Trump of conspiring to disrupt Congress’s certification of the Electoral College results and interfere with the peaceful transfer of power. The judge denied motions to dismiss filed on behalf of the Oath Keepers and Enrique Tarrio, the leader of the Proud Boys. Mehta separately is presiding over three criminal cases involving the Oath Keepers, including the first prosecution brought by the Justice Department in connection with Jan. 6 that charges defendants with seditious conspiracy.
A few of Trump’s other codefendants fared better. Longtime Trump ally and occasional Trump attorney Rudy Giuliani also spoke at the rally before the attack on the Capitol, referencing “trial by combat,” but Mehta found that his comments couldn’t be interpreted as a “call to action.” The allegations were “even thinner” when it came to Trump’s eldest son, Donald Trump Jr., Mehta concluded, finding that Trump Jr.s’ “false claims” about election fraud and criticism of Republican officials who didn’t support his father were all protected speech.
Mehta didn’t rule on a bid by Republican Rep. Mo Brooks to have the Justice Department step in to defend him in the case, instead providing Brooks with a roadmap to simply have the claims against him tossed out: The judge wrote that he believed Brooks would prevail for the same reason that he’d dismissed the claims against Giuliani and Trump Jr.
Trump’s lead attorney Jesse Binnall did not immediately return a request for comment. Joseph Sellers, a lead attorney for the group of Democratic members of Congress who are plaintiffs in one of the cases, said in a statement: “This decision exhibits the finest tradition of our legal system – evaluating cases on their merits, not politics. We will continue to pursue justice through the courts and ensure accountability for this attack on our democracy.”
Trump’s challenges to the lawsuits involved sweeping claims of absolute immunity and First Amendment protection as well as more specific arguments that the plaintiffs had failed to present enough facts at this early stage of the case to make out a plausible claim that he’d been part of a conspiracy.
Mehta began with the immunity argument. He largely rejected Trump’s arguments that he was shielded by absolute presidential immunity because his actions leading up to Jan. 6 — in particular, his tweets falsely claiming the election was stolen and calling his supporters to Washington — and during that day fell within his duties as a sitting president.
Mehta wrote that Trump and his attorneys had made a “misleading” and “wrong” argument that his conduct was covered by a section of the Constitution that empowers presidents to “take Care that the Laws be faithfully executed.” A president had no power over Congress’s certification of the Electoral College results or the vice president’s role in those proceedings as the president of the Senate, the judge wrote.
Trump’s argument that he couldn’t be sued for anything he said related to Jan. 6 because he was speaking on “matters of public concerns” also failed, Mehta found. The judge agreed that public officials were entitled to broad protections for what they said in their official roles, but that Trump’s “proposed test — that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit — goes too far.”
Mehta didn’t offer a blanket rule for when a president’s public comments would or would not be immune, writing instead that “the context in which those words are spoken and what is said matter.” The judge parsed whether Trump’s tweets and rally speech promoted “a presidential function.” He found that they did not.
“After all, the President’s actions here do not relate to his duties of faithfully executing the laws, conducting foreign affairs, commanding the armed forces, or managing the Executive Branch. They entirely concern his efforts to remain in office for a second term,” Mehta wrote.
Mehta did dismiss a separate claim raised only in Democratic Rep. Eric Swalwell’s lawsuit that sought to hold Trump liable for failing to use his power to immediately call off the rioters once the attack was underway. If a president couldn’t be liable for their official duties, that same immunity had to extend to decisions not to use that authority, the judge held.
Mehta rejected Trump’s arguments that these cases involved a “political question” that courts couldn’t get involved in — the judge had already found Trump wasn’t carrying out official duties — and that the cases couldn’t go forward because they mirrored the charges that he’d been acquitted of in the Senate after being impeached by the House last year.
The next big question was whether the plaintiffs laid out enough facts and allegations to claim that Trump engaged in a conspiracy to disrupt the peaceful transfer of power. Mehta found that they had. He pointed out that a conspiracy, under the law, didn’t have to involve an “express agreement” — that is, there didn’t need to be evidence that Trump physically sat down with the Oath Keepers and Proud Boys and reached an agreement to storm the Capitol. The members of a conspiracy had to “share the same general conspiratorial objective,” the judge wrote.
Mehta wrote that there were “multiple factors” that made it possible for the plaintiffs to show that Trump was part of the conspiracy to disrupt Congress.
“[I]t is at least plausible to infer that, when he called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes. The Oath Keepers, the Proud Boys, and others who forced their way into the Capitol building plainly shared in that unlawful goal,” Mehta wrote.
Mehta highlighted Trump’s public acknowledgment of the Proud Boys and wrote that it was likely that he knew about the Oath Keepers and that these groups, along with his other supporters, were “prepared to partake in violence for him.” He highlighted the intense engagement that Trump’s supporters had with his pre–Jan. 6 calls to come to Washington, the “call-and-response” element of the rally when Trump addressed the crowd, and Trump’s use of the collective “we.”
“The President and his advisors allegedly ‘actively monitored’ websites where supporters made violent posts, and such posts were discussed on Fox News, a media outlet regularly viewed by the President. He also would have known about violent threats made against state election officials, which he had refused to condemn. The President thus plausibly would have known that a call for violence would be carried out by militia groups and other supporters,” Mehta wrote.
Once the Capitol had been breached, the judge continued, Trump’s decision to continue to criticize then–vice president Mike Pence via Twitter and to post a supportive message to “great patriots” later in the day could be seen as “tacit agreement” of the conspiracy. Trump’s argument that he was making “political statements” aimed at persuading other politicians “misses the forest for the trees,” Mehta wrote.
“For months, the President led his supporters to believe the election was stolen. When some of his supporters threatened state election officials, he refused to condemn them. Rallies in Washington, D.C., in November and December 2020 had turned violent, yet he invited his supporters to Washington, D.C., on the day of the Certification. They came by the thousands. And, following a 75-minute speech in which he blamed corrupt and weak politicians for the election loss, he called on them to march on the very place where Certification was taking place,” Mehta wrote. “The President’s narrow characterization of his conduct accounts for none of this.”
The judge then rejected Trump’s argument that his rally speech was protected under the First Amendment. Mehta found that parts of the speech were “plausibly words of incitement” that weren’t entitled to constitutional protection, including: “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country” right before he told his supporters to “walk down Pennsylvania Avenue.”
Referencing a 19th-century philosophical treatise, Mehta wrote that Trump’s speech was “akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer’s home.”
“He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building — the metaphorical corn-dealer’s house — where those very politicians were at work to certify an election that he had lost,” the judge wrote.
Mehta wrote that some, but not all, of the other claims that the plaintiffs had raised under District of Columbia law, including negligence and aiding and abetting common assault, could go forward. He dismissed an emotional distress claim raised by Swalwell.