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Lawmaker lawsuits over Jan. 6 tested in Trump push to dismiss

‘One thing this hearing has demonstrated is that this is not an easy case,’ U.S. District Judge Amit Mehta said

Rep. Mo Brooks, seen in November, argued at a remote hearing Monday to be removed as a defendant in a lawsuit brought by Rep. Eric Swalwell about the Jan. 6 attack at the Capitol.
Rep. Mo Brooks, seen in November, argued at a remote hearing Monday to be removed as a defendant in a lawsuit brought by Rep. Eric Swalwell about the Jan. 6 attack at the Capitol. (Bill Clark/CQ Roll Call)

A federal judge in Washington sounded likely Monday to allow lawsuits from Democratic lawmakers and Capitol Police officers to move forward against former President Donald Trump in connection with the Jan. 6, 2021, attack on Congress.

U.S. District Judge Amit Mehta saved his sharper questions for lawyers for Trump and other defendants who want the judge to dismiss the lawsuits at an early stage, including Trump’s former lawyer, Rudy Giuliani, and Alabama Republican Rep. Mo Brooks.

At a remote hearing that lasted more than four hours, Mehta explored a variety of legal standards and legal questions that also reflected the greater legal fights to come about Trump’s role in the events that day, from the speech at a rally near the White House to his tweets later that night.

Three related lawsuits were at issue Monday. Mississippi Democratic Rep. Bennie Thompson sued Trump, Giuliani and others; California Democratic Rep. Eric Swalwell sued Trump and Brooks; and two Capitol Police officers sued Trump.

The lawsuits at this stage bring up questions about presidential immunity for speaking on governmental actions, the First Amendment free speech rights of a president and whether a speech could be part of a conspiracy to incite violence that day at the Capitol.

And Brooks, who represents himself in the case, argued Monday that the court should remove him as a defendant from some parts of the lawsuit because he was acting that day within the scope of his employment as a member of Congress — a legal protection House members and staff traditionally rely on to do their jobs.

“One thing this hearing has demonstrated is that this is not an easy case,” Mehta said at one point.

The lawyers for Trump and other defendants who asked to throw out the lawsuits have a more difficult case to make at this early point in the litigation. And Mehta often sounded skeptical of their arguments.

When it came to an argument that nothing the former president had said at the rally could be part of a conspiracy with those who stormed the Capitol, since Trump had encouraged the crowd to act “peaceably and patriotically,” Mehta responded: “I guess I don’t understand that.”

Mehta said that was outweighed by other mentions in Trump’s speech of fighting, showing strength and not letting the country be taken away. And the judge brought up the first hours after the attack, when Trump tweeted but did nothing to call off the attack, and allegations that Giuliani called lawmakers and urged them to slow down the count.

“Wouldn’t the reasonable person, whose words were being misconstrued, come out and say, ‘Wait a minute, stop, that’s not what I meant you to do’?” Mehta said.

Furthermore, he brought up a text message from Donald Trump Jr. to then-White House Chief of Staff Mark Meadows, unearthed by the House select committee to investigate the events of Jan. 6, in which the president’s son said that Trump needed to do something to stop the attack.

And Mehta sounded doubtful when Trump’s attorney, Jesse Binnall, argued that the former president had broad presidential immunity from civil litigation for his statements at the rally — and that the judge couldn’t look at the content of what was said.

“So a content-neutral review, in your view, would require me to find presidential immunity for any presidential statement made to the American people, even if it had nothing to do with the office of the president and the duties of the president?” Mehta said.

Binnall later told Mehta that when a president is speaking about congressional action, “we are dead center on immunity, because a president always has the authority to speak about whether or not any of the other branches, frankly, can or should take action.”

Later in the argument, Brooks told the judge that every speech and vote of his concerning the accuracy of the 2020 election, including his address at the Jan. 6 rally, was within the scope of his employment and job duty.

And he pointed out how Democratic Reps. Pramila Jayapal and Maxine Waters, who have joined the Thompson lawsuit, had previously voted against counting electoral tallies in previous presidential elections.

Mehta asked Justice Department lawyer Brian Boynton about why the agency concluded last year that Brooks wouldn’t qualify for the protections, when at the rally Brooks spoke about what he was going to do that afternoon on the House floor.

“It’s certainly true that there’s nothing improper about him giving these remarks. A member of Congress can engage in campaign activity. It’s just not within the scope of his employment as a congressperson,” Boynton said.

“When he chooses to make remarks advocating for the election of Donald Trump at a Trump rally, we think that that’s deemed to be campaign activity,” Boynton said.

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