Then-outgoing President Donald Trump delivers a speech on Jan. 6, shortly before his mob of supporters ran riot inside the U.S. Capitol. (Photo by Tasos Katopodis/Getty Images)

Spurning the former president’s “game of whataboutism,” a federal judge advanced three lawsuits seeking to hold Donald Trump civilly liable for the Jan. 6 attack on the U.S. Capitol. The former president must face accusations from multiple lawsuits that he violated the Ku Klux Klan Act, a Reconstruction-era law designed to punish conspiracies to interfere with civil rights.

“The Act was aimed at eliminating extralegal violence committed by white supremacist and vigilante groups like the Ku Klux Klan and protecting the civil rights of freedmen and freedwomen secured by the Fourteenth Amendment,” U.S. District Judge Amit P. Mehta explained in his ruling.

“We Fight Like Hell”

The judge rejected Trump’s argument he had the absolute right under the First Amendment to make the comments alleged to be an incitement to disrupt the peaceful transfer of power in the United States.

“Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, ‘[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,’ immediately before exhorting rally-goers to ‘walk down Pennsylvania Avenue,’ are plausibly words of incitement not protected by the First Amendment,” Judge Mehta wrote in a 112-page ruling. “It is plausible that those words were implicitly ‘directed to inciting or producing imminent lawless action and [were] likely to produce such action.””

A little more than a year ago, Rep. Bennie Thompson (D-Miss.) sued Trump, his lawyer Rudy Giuliani, the Proud Boys, and the Oath Keepers in a lawsuit accusing them of having “conspired to incite an assembled crowd to march upon and enter” the U.S. Capitol on Jan. 6, 2021. Thompson filed his complaint more than a month later on Feb. 16, alleging that the ex-president, his lawyer, and the militia members acted in cahoots to disrupt the certification of President Joe Biden’s victory.

Subsequent lawsuits by Rep. Eric Swalwell (D-Calif.) and Capitol Police officers also alleged that Trump incited the attack, or—in the words of the law enforcement officials—”directing” their assaults.

U.S. Capitol Police Officer James Blassingame, the lead plaintiff in the third case, described his legal victory as evidence that the powerful can be held accountable.

“It’s good to see that no one is above the law,” Blassingame said. “Everyone should be held accountable for their actions. Hopefully, a jury will see all of the evidence and make the appropriate determination.”

Swalwell’s suit also named Donald Trump Jr. and Rep. Mo Brooks (R-Ala.) as defendants.

Giuliani and his son Trump Jr. succeeded in dismissing the claims against them, but the Oath Keepers and Proud Boys leader Enrique Tarrio did not.

Judge Mehta rejected Brooks’s claim of immunity as a federal lawmaker—but invited him to file a motion to dismiss, which the judge said he “will grant.”

“The court is prepared to grant such motion for the same reasons it dismisses all claims against Giuliani and Trump Jr.: Brooks’s remarks on January 6th were political speech protected by the First Amendment for which he cannot be subject to liability,” Mehta wrote.

“Only in the Rarest of Circumstances”

At a January hearing on the motions, Trump attorney Jesse Binnall, who led the failed effort to overturn the Nevada presidential election results, advanced a theory of presidential immunity that would have exempted a president from liability for virtually any statement they would or could make. He also tried to claim Trump shouldn’t be sued for speech if nobody was held liable for the 2017 shooting at a congressional baseball game, perpetrated by a gunman whose social media profile indicated he supported Vermont Sen. Bernie Sanders. (No evidence ever suggested that shooter James Hodgkinson was inspired to act by Sanders or any other politician.)

Binnall previously likened Trump’s remarks to those of Rep. Maxine Waters (D-Calif.), who said that protesters should to “get more confrontational” on the ground in Minnesota during the time of Derek Chauvin’s trial for George Floyd’s murder. Chauvin was later convicted, and Waters said the political right took her words out of context.

But Judge Mehta called Binnall’s “whataboutism” irrelevant to the cases at hand.

“If the President’s larger point is that a speaker only in the
rarest of circumstances should be held liable for political speech, the court agrees,” he wrote. “That is why the court determines, as discussed below, that Giuliani’s and Trump Jr.’s words are protected speech. But what is lacking in their words is present in the President’s: an implicit call for imminent violence or lawlessness. He called for thousands ‘to fight like hell’ immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence.”

“Violence and Disruption Happened in Other Countries”

The judge found that this set of circumstances plausibly vaulted the high bar of “imminent lawless action” for incitement, at least on a motion to dismiss a civil suit, set by the Supreme Court in Brandenburg v. Ohio.

“To deny a President immunity from civil damages is no small step,” Mehta wrote in Friday’s ruling. “The court well understands the gravity of its decision. But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity.”

Mehta said that Trump’s actions at the heart of the lawsuit “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.”

“These are unofficial acts, so the separation-of powers concerns that justify the President’s broad immunity are not present here,” Mehta continued.

In the ruling’s introduction, Mehta—a Barack Obama appointee—quoted the words of former Republican president Ronald Reagan that the peaceful and orderly transfer of power is “nothing less than a miracle.”

“Violence and disruption happened in other countries, but not
here,” Mehta said. “This is the United States of America, and it could never happen to our democracy.”

“But it did that very afternoon,” added Mehta, who presides over a number of cases related to the Jan. 6 siege.

Trump’s lawyer did not immediately respond to an email requesting comment.

Read Mehta’s ruling below.

[Image via Tasos Katopodis/Getty Images]

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