Mehta made it extremely clear that he understood the consequences of this ruling, the context of the legal questions, and the scrutiny it will face.
“To deny a President immunity from civil damages is no small step. The court well understands the gravity of its decision. But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity...”
The only section of the suits where Mehta ruled in Trump’s favor was related to a portion of the suit brought by Rep. Eric Swalwell. That section dealt with claims against Trump for his failure to take action to halt the insurgents, or to bring in additional law enforcement or National Guard to end the threat. This, ruled Judge Mehta, involved questions about Trump acting in his official capacity. As a result, these actions are immune from scrutiny in a civil suit.
That doesn’t apply to Trump’s speech on Jan. 6. Trump’s attorneys had insisted that public speaking was a part of the role of the presidency. Mehta agreed. However …
“But to say that speaking on matters of public concern is a function of the presidency does not answer the question at hand: Were President Trump’s words in this case uttered in performance of official acts, or were his words expressed in some other, unofficial capacity? The President’s proposed test—that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit—goes too far.”
In this case, Mehta focused on Trump’s insistence that his followers march on the Capitol — an action that was not included under the permit for the Jan. 6 rally. In ordering his followers to march, and telling them to fight, Trump was telling them to violate the terms of the permit and encouraging them to engage in violence. That was particularly true because Trump had called for militia groups, like his co-defendants the Proud Boys and Oath Keepers, to come to the event and he knew they were present on that day.
Trump’s attorneys had insisted that Trump’s calls to “fight” were nullified by the single time that he mentioned that this should be a “peaceful” event. Mehta also didn’t agree with this statement.
“The President’s passing reference to “peaceful and patriotic” protest cannot inoculate him against the conclusion that his exhortation, made nearly
an hour later, to “fight like hell” immediately before sending rally-goers to the Capitol, within the context of the larger Speech and circumstances, was not protected expression.”
A ruling that any speech goes beyond First Amendment protection is extremely rare, because to do so a speech must not only encourage violence, but encourage specific and nearly immediate violence. But Mehta’s ruling states that Trump’s speech on Jan. 6 — bolstered by the pressure he had applied to get state leaders to overturn the election results, his efforts to push Mike Pence into refusing his Constitutional role, and his attempts to gather violent white supremacists to his cause — fully met that test.
“He called for thousands ‘to fight like hell’ immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence.”
Judge Mehta also noted that Trump’s tweets on that day appeared to “ratify” the violence, indicating that the assault on the Capitol was the outcome he had wanted. That included a message Trump sent while insurgents were inside the Capitol criticizing Pence for “not having the courage to do what should be done to protect our Country,” which encourage those already calling for Pence’s execution.
“It is reasonable to infer that the President would have understood the impact of his tweet, since he had told rally-goers earlier that, in effect, the Vice President was the last line of defense against a stolen election outcome. The President also took advantage of the crisis to call Senator Tuberville; it is reasonable to think he did so to urge delay of the Certification.”
Trump started the insurgents on their way, encouraged them when they were involved in the assault, and tried to use the assault for personal advantage.
Mehta also took not of Trump’s tweet from later that afternoon.
“And then, around 6:00 PM, after law enforcement had cleared the building, the President issued the following tweet: ‘These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!’ A reasonable observer could read that tweet as ratifying the violence and other illegal acts that took place at the Capitol only hours earlier.”
Overall, the ruling from Mehta — which is even more dismissive of the objections raised by attorneys for the Proud Boys and Oath Keepers — doesn’t just keep the door open for civil action against Trump, it’s a quick reference for what should be future criminal action.
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