WASHINGTON — Lawsuits seeking to hold former president Donald Trump personally — and financially — responsible for the violence at the Capitol on Jan. 6 are stacking up.
This week, two US Capitol Police officers who said they were on the front lines at the Capitol on Jan. 6 sued Trump, arguing that he was liable for inciting the violence and for the physical and emotional injuries they sustained during clashes with rioters.
There are already two lawsuits filed by Democratic members of Congress — Reps. Bennie Thompson and Eric Swalwell — that accuse Trump and his allies of conspiring to interfere with their official duties by pushing the false claims of voter fraud that underpinned the Capitol insurrection. A fourth case, filed a few weeks before the January riot, accuses Trump and Republicans of violating federal civil rights law by focusing postelection challenges and fraud falsehoods on areas with large Black populations.
Trump has denied that he was responsible for inciting the violence of Jan. 6, and his defense against these cases is likely to feature an argument that his promotion of the “Stop the Steal” campaign — the lie that President Joe Biden’s win was illegitimate and that there was widespread fraud — was political speech protected by the First Amendment. His lawyers haven’t filed responses yet to the post–Jan. 6 cases, but they’ve already raised a First Amendment defense in the postelection civil rights case filed on behalf of Black voters.
There’s more potential legal fallout from “Stop the Steal” looming over Trump. Earlier this week, a lawyer for Dominion Voting Systems told Axios that the election tech company hadn’t ruled out suing Trump or anyone else who promoted false claims that Dominion and its products were involved in an election fraud scheme. Dominion and another voting systems company, Smartmatic, have already filed billion-dollar lawsuits against Trump ally Rudy Giuliani, former Trump campaign lawyer Sidney Powell, and Fox News.
In the case filed in federal district court in Washington, DC, on Wednesday, longtime Capitol Police officers James Blassingame and Sidney Hemby alleged that Trump “inflamed, encouraged, incited, directed, and aided and abetted” his supporters who rioted on Jan. 6. They pointed to the weeks of postelection tweets and public remarks from Trump claiming the election was stolen and promoting demonstrations before Jan. 6 that had turned violent. They noted a tweet that Trump sent early on Jan. 6 urging Republicans to “FIGHT!” as well as his speech at the “Stop the Steal” rally just before the riot began when he said, “if you don’t fight like hell, you’re not going to have a country anymore.”
Blassingame and Hemby were worried about the size of the crowds assembling near the Capitol when they reported to work on Jan. 6, according to their lawsuit, but weren’t briefed about what to expect. Trump supporters had spent weeks planning for Jan. 6 and talking about the potential for violence on public social media platforms, but Capitol Police officials testified before Congress after the insurrection that they weren’t prepared for the size of the crowd and the violence that followed.
Capitol Police officials aren’t named as defendants in the case along with Trump. A lawyer for Blassingame and Hemby, Patrick Malone, told BuzzFeed News in an email that the lawsuit “is focused on the instigator of the violence, not on those who in hindsight might have mitigated some of the harm.”
Trump didn’t immediately respond to a request for comment via his post-presidency office, and a lawyer who is representing him in other postelection cases, Jesse Binnall, declined to comment.
The lawsuit described how a “tidal wave of insurrectionists … quickly outnumbered” the officers stationed outside of the Capitol. Rioters “crushed” Hemby against a door as they tried to get inside, and hit him and sprayed him with chemical irritants — he was bleeding from a cut below his eye and had “cuts and abrasions” all over his body.
Blassingame, meanwhile, was inside the building and the small group of officers he was with were overwhelmed as rioters streamed through windows and doors, according to the complaint. He was “slammed” into a stone column by a “forceful surge,” and rioters repeatedly hit him with fists, flagpoles, and other weapons. Blassingame and Hemby are Black, and the lawsuit described how Blassingame “lost count” of how many times rioters called him a racial slur. Black officers have previously described facing an outpouring of racist attacks on Jan. 6.
“Foremost in Officer Blassingame’s mind was the terrifying certainty that the insurrectionists were interested in him and the other officers not going home to their families that night,” the lawsuit states. He eventually moved away from the mob and was involved in helping members of Congress evacuate to another part of the Capitol. The lawsuit notes that some people around him weren’t following COVID-19 protocols as far as wearing masks or social distancing, but he had to stay where he was; the complaint didn’t say that he ever tested positive for the disease.
The lawsuit states that in addition to their physical injuries that day, both officers struggled with emotional and mental health problems in the weeks that followed.
Blassingame “is haunted by the memory of being attacked, and of the sensory impacts – the sights, sounds, smells and even tastes of the attack remain close to the surface,” the lawsuit states. “He experiences guilt of being unable to help his colleagues who were simultaneously being attacked; and of surviving where other colleagues did not.”
One thing the latest lawsuit has in common with those filed by Thompson and Swalwell, besides arguing Trump is responsible for the violence, is that they quote Senate Minority Leader Mitch McConnell, who joined the vast majority of his Republican colleagues in voting to acquit Trump of impeachment charges brought by House Democrats that he incited the violence. At the time, McConnell said that Trump was “practically and morally responsible for provoking the events of the day” and suggested he could still face civil lawsuits or even criminal prosecution.
Attorney General Merrick Garland testified at his Senate confirmation hearing in February that he would pursue leads in connection with the criminal investigation into the insurrection “wherever they take us,” but didn’t commit to investigating any particular person. Trump and other speakers and organizers involved in the “Stop the Steal” rally on Jan. 6 that preceded the riot have not been criminally charged to date.
The Capitol Police officers’ complaint did pull quotes from criminal cases that have been brought against people charged with participating in the insurrection who said they stormed the Capitol at Trump’s direction.
Trump has been taken to court over violence by his supporters before. In 2016, anti-Trump protesters sued then-candidate Trump after they were assaulted by Trump supporters at a campaign rally in Louisville, Kentucky. The plaintiffs argued that Trump was responsible for the actions of his supporters because he had repeatedly said, “get ’em out of here,” in response to the protests. A district court judge tossed some of the claims against Trump but ruled that the incitement allegation could go forward.
In June 2018, a federal appeals court reversed the lower court judge and dismissed the claim, concluding that because Trump “did not specifically advocate imminent lawless action,” his comments of “get ‘em out of here” were protected by the First Amendment. The court noted that Trump had also said, “Don’t hurt ’em.” That decision, from the US Court of Appeals for the 6th Circuit, isn’t binding on federal judges in Washington.
During Trump’s second impeachment trial in February, both sides argued over the significance of a 1969 decision by the US Supreme Court, Brandenburg v. Ohio, that drew a line between “mere advocacy” — even if it supported violent acts — and “incitement to imminent lawless action.” In the aftermath of Jan. 6, legal experts have split on whether Trump’s comments, advocacy, and tweets leading up to the insurrection as well as throughout that day would legally be considered incitement.