Trump Jan. 6 Inaction Could Be Seen as Approval, Judge Says
Trump Jan. 6 Inaction Could Be Seen as Approval, Judge Suggests
(Bloomberg) -- Former President Donald Trump’s long delay in calling for an end to last year’s assault on the U.S. Capitol could be viewed as evidence that he agreed with the rioters’ actions, a federal judge suggested.
U.S. District Judge Amit Mehta asked why it shouldn’t be seen that way during a Monday hearing in Washington on Trump’s motion to dismiss three lawsuits alleging he conspired with other defendants to incite the Jan. 6, 2021, insurrection.
“What would you have me do with the allegation that the president did not act?” Mehta said. “You have an almost two-hour period in which the president doesn’t take to Twitter or any other type of communication and say ‘Stop, get out of the Capitol. What you’re doing is not what I wanted you to do.’”
Defense lawyer Joseph Sibley, who presented arguments for Trump and other defendants, including former Trump lawyer Rudolph Giuliani, didn’t attempt to explain Trump’s delay but argued that it can’t be used as evidence against the Republican. “You cannot have a situation where failure to say something is, in itself, actionable and part of the conspiracy,” Sibley said.
The questions by the judge suggests he’s skeptical of Trump’s argument that he’s not “vicariously liable” for the actions of thousands of people who heard him speak at a “Stop the Steal” rally before marching on the Capitol.
The plaintiffs, who include members of Congress and two police officers, allege they were traumatized or injured during the assault. The suits note that, in his speech, Trump urged his supporters to march on the Capitol and “fight like hell.”
Mehta repeatedly had to ask Trump’s lawyers to stop bringing up various Democratic politicians, including Representative Maxine Waters, who they claimed had also made comments that could be interpreted as calling for violence.
“Let’s stick with the facts,” the judge said. “We know what words were spoken; we know what happened immediately after; and we know how the president responded.”
Joseph Sellers, a lawyer for the lawmakers suing Trump, said the former president can’t claim to be surprised by what happened after his rally because he’d spent weeks spreading a “false narrative” about the election being stolen. He repeated those claims in his Jan. 6 speech.
‘Bully Pulpit’
Trump has sought to dismiss the suits on the grounds that the speech is immune from litigation as a presidential act. Mehta asked if it falls into that category “even if it has nothing to do with the office of the president and the duties of the president?”
Jesse Binnall, another Trump lawyer, said it does.
“Giving a speech is something that presidents do -- using the bully pulpit,” Binnall said.
Donald Trump Jr., Representative Mo Brooks and right-wing groups like the Oath Keepers are also named as defendants in the suit.
Brooks, an Alabama Republican, also spoke at the Jan. 6 rally. On Monday, he made an immunity argument similar to Trump’s, citing the Westfall Act, which prohibits litigation against federal employees over their official duties.
His speech was “within the scope of my employment,” said Brooks, who is representing himself in the case.
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