Trump can be sued for role in Jan. 6 attack on Capitol, judge rules

Washington — Former President Donald Trump can be sued for damages incurred during the January 6 attack on the Capitol, “the first-ever presidential transfer of power marred by violence,” a federal judge in Washington, D.C., ruled Friday. 

In a written opinion that ran over 100 pages, Judge Amit Mehta rejected the former president’s claims that he is entitled to broad immunity from multiple lawsuits blaming him for the riot. Mehta reasoned that some of Trump’s actions on January 6 were “plausibly words of incitement not protected by the First Amendment” or by presidential immunity. 

Democratic Congressman Eric Swalwell of California, two members of the Capitol Police, and a group of House Democrats, led by Congressman Bennie Thompson of Mississippi, have each accused the former president of inciting the insurrection at the Capitol on January 6 in three separate lawsuits. 

The suit filed by Swalwell also named Rudy Giuliani, Trump’s personal lawyer, Donald Trump Jr., and GOP Congressman Mo Brooks of Alabama. The suit filed by 11 House Democrats alleges Trump, Giuliani and two far-right extremist groups, the Proud Boys and Oath Keepers, conspired to incite a crowd of his supporters to breach the Capitol in order to stop Congress from counting states’ electoral votes and reaffirming President Biden’s victory in the 2020 presidential election.

Taken together, the lawsuits were filed under a provision of a Reconstruction-era statute known as the Ku Klux Klan Act of 1871, which holds that it is illegal for a group to conspire to prevent federal government officials from carrying out their lawful duties. 

They allege Trump and his political allies conspired to prevent Congress from performing the necessary task of certifying the 2020 presidential election and the extremist groups aided in the execution of that conspiracy. 

Mehta ruled that many of the claims against Trump, the Oath Keepers, and the Proud Boys may continue in court, but he dismissed the lawsuits filed against Trump Jr. and Giuliani. 

Trump argued in court filings and hearings that he has “absolute immunity” from liability in the three civil suits filed against him and claimed his remarks outside the White House before the mob descended on the Capitol were political speech protected by the First Amendment. 

During that speech, he urged attendees of the “Save America” rally at the Ellipse to “fight like hell” and march to the Capitol building “to peacefully and patriotically make your voices heard,” words referenced multiple times in Mehta’s opinion. 

The former president contended that in his January 6 speech, he was acting in his capacity as president in an attempt to affect Congress’s certification of the Electoral College votes and is therefore not responsible for any of the damage from the rioting that took place after his speech. He was not conspiring to commit a crime, his lawyers argued, but acting as president of the United States.

The judge flatly rejected this claim, writing the fiery speech was not part of the president’s official duty — it was focused on keeping him in office for a second term. 

Trump used the speech “to complain about perceived cases of election fraud…and to exhort the Vice President to return those certifications to those states to be recertified,” Mehta wrote.

Then-Vice President Mike Pence resisted the entreaties of the former president and many other Republicans to reject the certification of the Electoral College votes. 

Based on the evidence provided, Mehta said that it is reasonable to assume that when Trump called on his supporters to march the Capitol and “fight like Hell,” “he did so with the goal of disrupting lawmakers’ efforts to certify the Electoral college votes.” 

Trump issued a call to action and his supporters responded by breaching the Capitol, the judge said. 

Dissecting Trump’s speech on the Ellipse, the conditions of its delivery and the rhetoric leading up to it, Mehta reasoned the former president’s words “stoked an already inflamed crowd, which had heard for months that the election was stolen.”

He concluded that Trump’s words were “an implicit call for imminent violence or lawlessness” that are neither protected by presidential immunity nor the First Amendment. 

 Mehta did, however, reject Swalwell’s claim that the former president should be held liable for not exercising his presidential powers to stop the riot. 

“Were it otherwise, Presidents routinely would be subject to suit for not doing more or for not acting at all,” the judge wrote, while allowing other parts of Swalwell’s lawsuit to go forward. 

The attorney representing Trump in this lawsuit did not immediately respond to CBS News’ request for comment.

As for Rudy Giuliani, Mehta ruled that although Trump’s former personal lawyer advocated for “trial by combat” during his own January 6, 2021 speech, he did not issue a call to action.

“There is no allegation that anyone took Giuliani’s words as permission to enter the Capitol,” the judge wrote, a conclusion he also reached in the case of the president’s son, Donald Trump Jr. 

The Oath Keepers unsuccessfully contended they should not be held accountable for the riot under that Reconstruction-Era law because Congress was not actually performing its official duty, a claim multiple defendants facing criminal prosecution for their alleged roles in the attack have also made.

“This reading of the Constitution defies common sense,” Mehta wrote Friday.

Jon Moseley, an attorney for the Oath Keepers, said he was not surprised by Mehta’s order when CBS News informed him of the judge’s decision. Moseley did, however, say he hopes the court further consolidates these lawsuits to make them more efficient going forward. 

D.C. Attorney General Carl Racine announced last year that his office was also suing the Oath Keepers and Proud Boys on similar legal grounds. 

Friday’s ruling does not mean the former president has been found responsible for the attack, but that the lawsuits against him can continue in federal court.