Judge Weighs Whether Trump Incitement, Silence On Jan. 6 Meant ‘Agreement’ With Insurrectionists

A judge suggested that Trump could be held civilly responsible for the insurrection.
WASHINGTON, DC - JANUARY 06: President Donald Trump speaks at the "Stop The Steal" Rally on January 06, 2021 in Washington, DC. Trump supporters gathered in the nation's capital today to protest the ratification of P... WASHINGTON, DC - JANUARY 06: President Donald Trump speaks at the "Stop The Steal" Rally on January 06, 2021 in Washington, DC. Trump supporters gathered in the nation's capital today to protest the ratification of President-elect Joe Biden's Electoral College victory over President Trump in the 2020 election. (Photo by Tasos Katopodis/Getty Images) MORE LESS

Attorneys for former President Trump were forced to explain at a Monday court hearing why their client’s actions on Jan. 6 did not meet the standard for a conspiracy.

And Rep. Mo Brooks (R-AL), oddly, was forced to explain his own actions on that day.

Appearing before U.S. District Judge Amit Mehta for the District of Columbia, Trump lawyer Jesse Binnall repeatedly argued that the mob that day did not act in response to Trump’s urges, and brushed aside questions from Mehta about whether the former president’s refusal to condemn the rioters amounted to “agreement” with their actions. At multiple times in the hearing, Binnall suggested to Mehta — an Obama appointee — that the judge was treating Trump differently for being Republican.

“It’s about making sure you don’t say that the law is one thing for Democrats and another thing for Republicans, when they protest,” Binnall said at one point.

Those comments earned a rebuke from Mehta, who told Binnall that “to suggest that I will treat the former president differently because of his party is simply inappropriate.”

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The back-and-forth came in a hearing to air out arguments from Trump, Trump Jr., Rudy Giuliani, Brooks, and others in civil suits brought against them over the insurrection. The three suits — one brought by Capitol Police officers and two brought by Democratic members of Congress — are seeking financial damages from Trump and others.

Brooks appeared without counsel, opting, surprisingly, to represent himself in the matter. During an exchange with Mehta, he said that the Trump White House had asked him to speak at the Ellipse on the morning of Jan. 6 — a detail about the day that the representative hadn’t previously discussed publicly.

Mehta said over and over again that he was unsure how to rule in the matter, noting that the case — and the circumstance — raised a number of Constitutional issues.

In a question to Binnall, he recalled asking an unnamed “colleague” about a central issue in the insurrection: why “didn’t Trump denounce the conduct immediately?”

Isn’t that, from a plausibility standpoint, enough to at least plausibly infer that the president agreed with the conduct of the people that were inside the Capitol that day?” Mehta asked.

Binnall, who was making an unprecedentedly broad argument that Trump is immune — both from claims related to potentially inciting the insurrection and those related to failing to call it off — replied that the president could not be held accountable for the absence of action.

“The president cannot be subject to judicial action for any sort of damages for failing to do something,” Binnall said.  

Binnall spent much of the hearing dodging similar questions from Mehta, while upping the harm that Trump stands to suffer should the lawsuits be allowed to go forward: “Almost every major first amendment right that could be at play is at play in these cases,” Binnall said, emphasizing that Trump has a right to “petition for redress of grievances.”

Binnall also said that Trump never specified that his supporters should “go riot at the Capitol.”

Mehta replied that Trump didn’t need to be that specific: “all it requires is an incitement to imminent, lawless action.”

The question was whether Trump’s and his associates’ activity at the Jan. 6 rally on the Ellipse were a part of actions taken in their official capacities as president — or, in Brooks’ case, as a member of Congress — or if, alternatively, the speeches constituted an example of campaigning: something that, courts have held, is not protected, official speech.

If Mehta rules that Trump was not acting in his official capacity on Jan. 6 on the Ellipse, it would pave the way for the lawsuits to go forward.

Brooks, representing himself, read from a legal document that he had prepared for the hearing, proclaiming that “every action I took, every speech I gave, every vote I cast about the 2020 elections was within the scope of my employment.”

Mehta interrupted him, asking whether he accepted the distinction between campaigning and speaking in his official capacity as a representative.

I reject it,” Brooks replied. “Name the campaign that was ongoing or that I was participating in.”

Brooks added that the judge needed to look at the full context of his speech at the Ellipse that day — it was a “legal proceeding” about the election, Brooks said, and not a “campaign rally.”

The speech, in which Brooks donned body armor and told the crowd to “fight,” concerned “the House floor debates and the Electoral College vote submissions that we were going to have that day,” he said Monday.

“I thought everyone knew that,” he added.

After Mehta asked Brooks about the words of his speech, Brooks replied that he hadn’t reviewed the speech before the hearing.

“I did not discern that there would be questions on that perspective,” Brooks said.

Binnall made an extremely broad argument throughout the hearing that there was virtually nothing a president could say, while in office, that would subject him to civil liability.

The only example that Binnall could come up with of a situation in which a president might be held accountable was an arcane hypothetical involving a president trying to undertake a mortgage-related scam.

Binnall repeatedly went back to one line in Trump’s speech, when the then-president called on the crowd to “peacefully and patriotically make their voices heard.” That, Binnall declared, should have been enough to exonerate Trump from any claim of incitement.

Mehta disagreed.

“That is outweighed by the references to fighting, to shows of strength, to not letting the country be taken away, and calling on folks to come go down to the Capitol building,” the judge said.

Separately, Mehta asked Binnall about some of Trump’s behavior around Jan. 6 — calling the Georgia secretary of state on Jan. 3, for example, demanding that he change the vote totals.

“How is he carrying out the function of the presidency by calling a state official?” Mehta asked.

Binnall replied that Trump had taken an oath to ensure that the laws were “faithfully executed.”

“Not state laws,” Mehta replied.

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