Lawyers for former President Donald Trump urged a federal judge Monday to dismiss lawsuits accusing him of conspiring with two far-right extremist groups and others to block the presidential vote count.
U.S. District Court Judge Amit Mehta questioned lawyers for both sides, but his most probing comments were directed at members of the Trump legal team, and the judge showed no sign that he was prepared to immediately dismiss the suits.
The first lawsuit over the Capitol riot to name the former president, filed 11 months ago by House Democrats, said the attempted insurrection was "the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College."
Rep. Bennie Thompson, D-Miss., was originally the lead plaintiff but withdrew from the case after he became chairman of the House committee investigating the riots. Ten House Democrats remain on the suit.
Monday's hearing involved that case and two others, brought by Rep. Eric Swalwell, D-Calif., and two U.S. Capitol police officers. Three other civil lawsuits brought by police officers make similar allegations.
The suits allege that by repeatedly claiming the election was stolen, Trump and his then-personal lawyer Rudy Giuliani mobilized supporters and backed armed protest, rejecting pleas to cool down the rhetoric. At the rally near the White House on Jan. 6, the two "began stoking the crowd's anger and urging them to take action to forcibly seize control of the process for counting and approving the Electoral College ballots," the suit filed by House Democrats said.
Trump's lawyers urged the judge to throw the cases out, arguing that Trump was acting in his official capacity in urging Congress not to declare Joe Biden the winner of the election, that he did not incite people at a Jan. 6 rally to violence, and that his statements were protected expression under the First Amendment.
Jesse Binnall, a lawyer for the former president, said Trump has absolute immunity from civil lawsuits over his official actions while in office, so he was free as president to advocate for Congress to take action favorable to him in counting the electoral vote, just as he was free to push Congress to pass bills he supported.
Binnall said the court cannot weigh the words the president spoke at the rally, because part of any president's duty is making public speeches.
Mehta suggested that went too far. "A president would have immunity for any statement made to the American people, even if it had nothing to do with a president's duties?"
But he also said a president has wide latitude to make political statements, and Trump's comments at the Ellipse may have had some connection to his official duties. "Where would you have a court draw the line?" Mehta asked a lawyer representing the House Democrats.
Trump's lawyers also said the lawsuits failed to establish that he was involved in any conspiracy to storm the Capitol.
"A conspiracy has to be established before the rioters arrived, and there's no evidence that there was any communication beforehand," Binnall said.
Mehta questioned that position, too. "The president invited people to the Ellipse," he said. "The plaintiffs contend he further encouraged them to march to the Capitol and take it by force, and people accepted that. So that's not enough to establish a conspiracy?"
Binnall said none of the president's comments after the rally indicated that he supported what the rioters did. But the judge asked, "What do I do about the fact that the president didn't denounce the conduct immediately and in fact sent a tweet that arguably exacerbated things, to the extent anybody saw it who was inside the Capitol.
"What do I do about those facts that he doesn't do anything for about two hours to tell people to stand down and leave the Capitol?" he continued. "Isn't that enough to at least plausibly infer that the president agreed with the conduct of the people who were in the Capitol that day?"
