WASHINGTON – Lawyers for former President Donald Trump, his personal lawyer Rudy Giuliani, and extremist groups Oath Keepers and Proud Boys urged a federal judge Monday to throw out a trio of lawsuits accusing them of inciting the Capitol riot a year ago.
U.S. District Judge Amit Mehta was grappling with whether to let the cases filed in February and March last year to continue to trial.
Trump’s lawyer Jesse Binnall argued the former president had immunity for anything he said at a rally Jan. 6, 2021, and couldn’t be sued for damages. Binnall also said he couldn’t be part of any conspiracy to incite the violence because he urged participants to “peacefully and patriotically make your voices heard” at the Capitol.
“These cases should be dismissed because they should never have been brought in the first place,” Binnall said. “The complaints themselves are void of any legal basis. Instead, they’re chock full of propaganda meant to achieve a political rather than legal objective.”
A dozen House Democrats and a pair of Capitol Police officers filed three lawsuits against Trump by arguing his calls for supporters to fight for their country spurred the violence. The riot injured 140 officers and left four people dead, while temporarily halting Congress from counting Electoral College votes that certified President Joe Biden’s victory. A police officer died of a stroke the next day after he was attacked in the riot though a medical examiner attributed the death to natural causes.
Joseph Sellers, a lawyer representing the group of House Democrats, argued that Trump could be sued because the rally was a private event akin to a campaign rally and not protected by carrying out his official duties of office.
“The president has no legitimate role in the counting of the electoral ballots,” Sellers said. “There is no legitimate role absolutely for fomenting an insurrection directed at Congress.”
More:Jan. 6 committee examines how Capitol riot unfolded – and how to prevent it from happening again
In deciding whether to allow the cases to go forward, Mehta must decide whether Trump had immunity from such lawsuits, whether his speech was protected by the First Amendment and whether the law allows lawmakers and officers to bring the cases.
“I hope that one thing this hearing has demonstrated is that this is not an easy case,” Mehta said. “I have struggled with a lot of these issues because they raise a lot of important constitutional questions.”
The civil lawsuits are separate from the criminal cases the Justice Department is pursuing against more than 700 defendants.
More:Who invaded the US Capitol on Jan. 6? Criminal cases shed light on offenses
One civil case led by Rep. Bennie Thompson, D-Miss., who also heads the committee investigating the attack, accused Trump of violating the 1871 Ku Klux Klan Act, which sought to protect lawmakers from threats or intimidation against carrying out their duties. The case filed in February 2021 also named Trump’s personal lawyer, Rudy Giuliani, the Oath Keepers and Proud Boys, far-right groups with dozens of members charged criminally in the attack.
Thompson was joined by other lawmakers in his case: Reps. Bonnie Coleman Watson, D-N.J.; Karen Bass, D-Calif.; Pramila Jayapal, D-Wash.; Maxine Waters, D-Calif.; Jerrold Nadler, D-N.Y.; Henry Johnson, D-Ga.; Stephen Cohen, D-Tenn.; Barbara Lee, D-Calif.; Veronica Escobar, D-Texas; and Marcy Kaptur, D-Ohio.
Another other case is by Rep. Eric Swalwell, D-Calif., who charged that Trump incited the attack. The lawsuit filed in March 2021 also targeted Giuliani, the former president’s son, Donald Trump Jr., and Rep. Mo Brooks, R-Ala., who each spoke at a Trump rally near the White House before the attack.
Brooks, who represented himself in the case, argued that Mehta should drop him from the case because he was acting in his official role as a House member who helps certify Electoral College results when he gave the speech at Trump’s rally. Brooks disputed that the speech was a campaign speech, which might have forfeited his protection from the lawsuit, because the election ended Nov. 3, 2020.
“Every action I took, every speech I gave, every vote I cast concerning the accuracy of the 2020 election was within the scope of my employment because they were all part of my job duty,” Brooks said.
Swalwell named him in the lawsuit because Brooks asked the crowd at the Trump rally whether participants were willing to “fight” and sacrifice their “blood, their sweat, their tears, their fortunes and sometimes their lives” in overturning the election results.
Brian Boynton, a Justice Department lawyer, said a bedrock principle of democracy is that the government must remain neutral in elections. Boynton argued that Brooks’ speech was a campaign speech, so it didn’t deserve protection from Swalwell’s lawsuit.
“We believe that to be campaign activity and not within the scope of his employment,” Boynton said.
The third case is by Capitol Police Officers James Blassingame and Sidney Hemby. They alleged that Trump’s conduct incited the riot by urging his followers to try to overturn the election results.