Summary of Hearing Charging Trump and others With Violating the KKK Act.

This afternoon Judge Mehta in the United States District Court for the District of Columbia held a hearing on motions to dismiss from the defendants in three cases where plaintiffs allege Trump, and others, incited the January 6 storming of the Capitol. The Plaintiffs include Representative Swalwell, ten other members of Congress, and several Capitol Police Officers. The defendants include Donald Trump (in all three cases), Trump Junior, Rudy Giuliani and Representative Mo Brooks.

The Allegations

The plaintiffs allege Trump, and the others, conspired with the rioters to attack the Capitol and incited the assault. A key allegation is their claim that defendants violated the Ku Klux Klan Act at 42 U.S.C. § 1985 by engaging in a conspiracy to interfere with civil rights. The KKK Act establishes civil liability for anyone who conspires:

“to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof . . . .”

The Standard of Review

The defendants motioned for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action for which relief can be granted. This rule allows early dismissal of a case when the complaint is facially deficient. For example, on grounds that plaintiffs lack standing. At this early stage the standard is very favorable to plaintiffs. All well pled facts alleged by plaintiffs are assumed to be true.

However, it is not sufficient in a conspiracy case for the plaintiffs to simply generally allege the defendants conspired. Rather, the plaintiffs must allege specific facts, that if true, would amount to a conspiracy. If the specific facts alleged don’t meet the legal definition of a conspiracy then dismissal under Rule 12(b)(6) would be appropriate.

Similarly, if the words alleged are, as a matter of law, protected speech under the First Amendment then dismissal would also be appropriate.

Presidential Immunity

Trump’s attorney argued that his speech was protected by the doctrine of Presidential immunity where a President is immune to conduct related to his Presidential duties. Trump’s attorney argued that under judicial precedents the standard for this immunity is very broad going to the “outer boundaries” of anything within a President’s powers. Since Presidents regularly speak to the American people he argued Trump’s speech to the American people was protected by this doctrine. Arguing that the court cannot even consider the content of the speech Trump’s attorney argued that absolutely anything said by a President is protected by this doctrine. Further, since Trump was speaking about Congressional action it was “dead center on responsibilities of the Presidency” and therefore “dead center on immunity.”

The judge seemed skeptical of that asking if campaign speech was within the immunity doctrine. Trump’s attorney argued that it was, but that certain solely campaign related acts, like signing a lease for a campaign headquarters, might not be. This was the only example he said he could come up with of an action by a sitting President that would not be within the immunity doctrine.

Plaintiffs’ counsel cited Clinton v. Jones as precedent establishing that a sitting President can be liable for his private actions. Starting a riot on coequal branch is private and not subject to immunity. You must look to content to determine if it is linked to Presidential immunity, even at this outer perimeter. For example, it is absurd to argue that if a President promoted treason (content) to the public that doing so would be protected by this immunity. Yet Trump’s counsel asks the court to adopt exactly that absurdity.

The judge asked if the President speaking on matter of public concern (in this case the integrity of election) should be immune. Plaintiffs responded that Trump spoke to secure his reelection, not general election integrity. His speech is about him winning, not election integrity.

Plaintiffs said this was political campaigning which is not a Presidential duty. Plaintiffs gave an interesting hypothetical where the person making such inciting speech was the losing candidate to the incumbent. Is it right that loser non-incumbent has no privilege for the very same thing but the incumbent does?

The Standard For A Conspiracy

Trump’s attorney argued that the facts alleged did not meet the legal standard for a conspiracy. A conspiracy requires more than that those involved were on the same team. They must “huddle,” to plan and create a “meeting of the minds,” to commit an illegal act.

The judge pushed back suggesting that plaintiffs allege there was a call to action (by Trump) and action by those who invaded the Capitol. The judge repeatedly questioned Trump’s attorney asking if Trump invited the defendants to commit an illegal act, and they did accepted his invitation, wouldn’t that be a conspiracy? Trump’s attorney eventually grudgingly admitted that might, but argued that Trump never invited anyone to do anything illegal. Trump’s attorney argued that under such a standard the speech itself must be an invitation to do something illegal. Trump’s attorneys argued the only “conspiracy” was to march peacefully on the Capitol, not to commit violence.

Plaintiffs counsel argued that under the explicit words of the KKK Act conspiracies include acts or words which “cause to be done” an illegal act and that Trump certainly did that. Plaintiffs pointed out that in response to his words, as Trump spoke, shouts and chants about invading the Capitol broke out and Trump did nothing to contradict them, and this suggested an “invitation” particularly in light of his call to march on the Capitol.

Plaintiffs emphasized, and the judge seemed to show some support for, an argument that even after the riot started Trump tweeted support for what was happening. He tweeted a video of his speech and there was also the notorious speech about Mike Pence being a coward. Also his tweet as the riot ended effectively thanking them for what they did. Plaintiffs argued that if Trump believed the violence showed he had been misconstrued that he would have said so and told his followers to stop. Not only did he fail to do that, but he egged them on and as it ended thanked them. This, plaintiffs said, was ratification of the invitation to commit illegal acts.

The judge did seem skeptical about the conspiracy allegations against the other defendants, in particular Trump Junior and Rudy Giuliani. This was primarily because they did not have the call to action to march on the Capitol in their speeches that Trump did.

First Amendment Defense

Trump’s attorneys wanted to focus on the Supreme Court case of Brandenburg v. Ohio, long regarded as the seminal case for incitement to commit violence. Brandenburg was a KKK leader who at a KKK meeting rather explicitly and graphically advocated violence against Blacks. He was charged under a statute criminalizing advocating such things. The Supreme Court reversed his conviction stating that merely advocating violence is insufficient. Rather the speech must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The defense argued Trump’s words contained no such direction to incite and were much more benign than the words in Brandenburg.

However, the judge was much more interested in the case of NAACP v. Claiborne Hardware Co. In that case the NAACP was urging a boycott of white businesses that engaged in racism. NAACP Mississippi Field Secretary Charles Evers stated that if they found any Blacks going into those businesses “we’re gonna break your damn neck.” Notably, no necks were actually broken as a consequence. The court found that to be important and Judge Mehta in the Trump case quoted the following language from it:

“The emotionally charged rhetoric of Charles Evers’ speeches did not transcend the bounds of protected speech set forth in Brandenburg. The lengthy addresses generally contained an impassioned plea for black citizens to unify, to support and respect each other, and to realize the political and economic power available to them. In the course of those pleas, strong language was used. If that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct.”

The judge pointed out that Trump’s emotionally charged rhetoric was followed by acts of violence. Trump’s attorneys responded that Trump’s words fell well short of threats to break necks and argued that under the Evers case the speech must be objectively capable of inspiring violence combined with the violence that follows. You can’t just look at violence consequences alone.

Mo Brooks And The Westfall Act

The Mo Brooks issue was different from the others. Brooks was seeking to compel the court to order Department of Justice to represent him on grounds that his speech to the crowd was part of his official duties as a Congressman. The DOJ had declined to represent him stating his speech was not part of his official duties because they were a campaign activity.

To my surprise Brooks represented himself at the hearing. He argued that his comments were not part of a campaign, he certainly was not campaigning for himself. He argued he couldn’t be campaigning for Trump because the Trump campaign was over. The judge really didn’t have any of that pointing out that Trump kept the campaign alive after the election.

A DOJ attorney walked through their reasoning in rejecting Brooks’ request for representation pointing out that it was at a Trump rally that was advocating for Trump to win the Presidency and that case law made clear that speeches at campaign rallies were not official acts.

Some Conclusions

This is not a slam dunk and could go either way. At one point the judge directly stated that it was a hard case.

Interestingly, the judge seemed to think the strongest case was against former President Trump himself, and not so much against the others (Giuliani, Trump Junior and Mo Brooks). I think there is a good chance they get dismissed from this. Whether the case against Trump survives is too close to call.

What’s At Stake

With his usual dishonesty Trump will view a dismissal as a complete vindication. More importantly an incredible opportunity for discovery would be lost. If the lawsuit survives this dismissal it proceeds to discovery. Because Plaintiffs have made an issue of Trump’s failure to stop the riot that failure would become an issue for discovery. Depositions of Meadows, Ivanka, others and Trump himself would be wide open, as would many of the documents sought by the 1/6 Committee.

Could Trump dodge deposition by invoking the 5th Amendment? Yes, but it would come with a price. Unlike criminal cases, in civil cases Plaintiffs can use a defendant’s assertion of 5th Amendment privilege against him and argue that his doing so suggests guilt.