Judge allows lawmaker Jan. 6 lawsuits against Trump to proceed

But a claim against Alabama Republican Rep. Mo Brooks should be dismissed, the judge ruled

Rep. Bennie Thompson, D-Miss., seen at a press conference last month, is pressing a lawsuit to hold Donald Trump personally responsible for the Jan. 6, 2021, attack on the Capitol. (Tom Williams/CQ Roll Call)
Rep. Bennie Thompson, D-Miss., seen at a press conference last month, is pressing a lawsuit to hold Donald Trump personally responsible for the Jan. 6, 2021, attack on the Capitol. (Tom Williams/CQ Roll Call)
Posted February 18, 2022 at 5:21pm

A federal judge ruled Friday that Democratic lawmakers and Capitol Police officers can move forward with civil lawsuits against former President Donald Trump in connection with the Jan. 6, 2021, attack on Congress, but Alabama Republican Rep. Mo Brooks should be dismissed as a defendant.

U.S. District Judge Amit Mehta issued a 112-page opinion on early motions from defendants to dismiss claims in three related lawsuits, which seek to hold Trump, the former president’s lawyer, Rudy Giuliani, and others personally responsible for their roles in the events.

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.

A total of 11 House members are plaintiffs in the lawsuits under the Ku Klux Klan Act, passed in 1871 in the wake of the Civil War, which bans any conspiracy to prevent members of Congress from discharging the duties of their office.

Mehta allowed some claims to go ahead against Trump and two right-wing extremist groups, but dismissed other claims against Trump. The judge also said he would dismiss the claim against Brooks, who is representing himself in the case.

Brooks did not ask the court to dismiss the case against him, but instead argued that the court remove him as a defendant 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.

Swalwell’s lawsuit describes how Brooks promoted and spoke at the rally near the White House on Jan. 6 that preceded the attack, and the case set up a rare member-on-member fiery legal dispute.

Mehta did not weigh in on that legal protection, but wrote that if Brooks files a motion to dismiss he would grant it. “Brooks’s remarks on January 6th were political speech protected by the First Amendment for which he cannot be subject to liability,” Mehta wrote.

The Justice Department earlier in the case had declined to certify that Brooks had been acting within his official role as a member of Congress when he spoke at the rally ahead of the attack, writing that he “cannot show that his actions in inciting a deadly riot were somehow within the scope of his federal employment.” The House Office of General Counsel had declined to weigh in on that question.

And Mehta dismissed all claims against Giuliani and Donald Trump Jr. based on their free speech rights under the First Amendment, finding that at the rally “none of their words, explicitly or implicitly, rose to the level of a call for imminent use of violence or lawless action.”

When it comes to Trump, his lawyers had a difficult case to make toss the lawsuit at this point.

Mehta concluded that, at this early stage when he must view facts in the light most favorable to those who filed the lawsuit, there is a plausible conspiracy involving the former president and two right-wing extremist groups that entered the Capitol building on Jan. 6 “with the intent to disrupt the Certification of the Electoral College vote through force, intimidation, or threats.”

In the analysis, Mehta points to Trump’s actions at the rally, Trump’s response to the violence at the Capitol and more.

“From these alleged facts, it is at least plausible to infer that, when [Trump] called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes,” Mehta wrote. “The Oath Keepers, the Proud Boys, and others who forced their way into the Capitol building plainly shared in that unlawful goal.”

Mehta also concluded that it is reasonable to infer that Trump, who mentioned the Proud Boys during a presidential debate, “knew that these were militia groups and that they were prepared to partake in violence for him.”

Trump “thus plausibly would have known that a call for violence would be carried out by militia groups and other supporters,” Mehta wrote, and Trump would have known his Jan. 6 rally would be viewed as a call for collective action.

Mehta did not find arguments from Trump’s lawyers persuasive, including that he said the rally-goers would be “peacefully and patriotically” marching to the Capitol.