Thread by @ZoeTillman

At 1pm, US District Judge Amit Mehta will hear arguments on Donald Trump's effort to get three lawsuits tossed out re: his civil liability for the Jan. 6 insurrection — one filed by a group of Dems, one filed by Rep. Eric Swalwell, one filed by two USCP officers injured that day

There will be a public line to listen to this hearing, here's that info:
Toll Free Number: 877-848-7030
Access Code: 3218747

Here's Mehta's plan for dividing up arguments, which also gives you a good sense of the defenses Trump is raising, chiefly:
- that he's immune because he was president at the time
- that members of Congress aren't covered by the statute they're suing under
- First Amendment

Trump is the common thread across these three cases, but there are other motions pending for Mehta to address. Rudy Giuliani is a defendant in the two cases filed by Dems and has also moved to dismiss. Don Jr. is a def in Swalwell's case and has joined his father's motion

Rep. Mo Brooks is also a defendant in Swalwell's case and has argued he was acting in his official capacity so DOJ should step in on his behalf. DOJ has said no thank you, but it's ultimately up to the judge: buzzfeednews.com/article/zoetil…

The public line has turned on, we're just waiting for the hearing to start

Judge Amit Mehta is on the bench, metaphorically (it's a virtual courtroom today). He begins by making clear that he'll hear argument on the Oath Keepers' motion to dismiss if the group's new lawyer wants to address it, since that's a new appearance

First up is Jesse Binnall, representing Donald Trump and Don Jr. He's been representing Trump in a number of civil suits, and had been part of Michael Flynn's defense team with Sidney Powell re: the case brought by Mueller's office

Binnall argues Dems brought these cases ignoring Trump's remarks on Jan. 6 about wanting "peaceful" actions, that they want the court to override "bedrock" con principles like separation of powers and freedom of speech, and trying to use the court to score political points

Mehta asks Binnall to turn to the legal issues, asks about what the test should be for granting presidential immunity against suit. Binnall says it should be a very broad reading to include things at the outer edges of the presidency

Mehta: You would have me ignore what he said in its entirety?

Binnall: Yes - for presidential immunity, you look at the type of act being conducted, for instance, a speech to the American people.

Mehta: Would you agree campaign speech falls outside that?

Binnall: Not necessarily

Mehta's pushing him on this, saying that arguing campaign speech is entitled to immunity too would seem contrary to SCOTUS precedent saying context matters for deciding the scope of protection

Mehta: What about claim Trump called a state official in Georgia to ask them to scrutinize election results? Is that entitled to immunity?

Binnall: Yessir

Mehta: On what basis?

Binnall: President's constitutional duty to ensure laws faithfully executed

Mehta: Not state law...

Binnall: Elections are where the duties of state election officials involve federal functions and state functions, given constitutional provisions re: electors

Mehta: Anything a prez could do as a candidate that's not entitled to immunity?

Binnall: Can't think of an example

Binnall is arguing that Trump's speech/actions around Jan. 6 aren't even at the "outer perimeters" of being covered by presidential immunity because advocating for another branch of govt to act or not act is always something a president has authority to do

Mehta: If a prez said something defamatory at a campaign rally, would that be covered by immunity?

Binnall: Yessir

Mehta: Is there anything a prez could say while prez that could subject him to civil suit?

Binnall: I have tried to think of examples and I cannot come up w/ one

Recall we heard variations on this argument — that basically presidents are totally immune from suit for what they say while in office — in the E. Jean Carroll defamation case: buzzfeednews.com/article/zoetil…

Joseph Sellers, a lead attorney for the group of Dems suing in one of the cases, will be making arguments on behalf of the plaintiffs in all three cases on the three main defenses raised by Trump

Sellers begins by saying that they agree SCOTUS held that presidential immunity extends far, but not not for "purely private actions," and that's what they contend Trump was doing re: Jan. 6. Just speaking in front of the public isn't enough to make it an official act, he argues

Mehta: Trump was speaking to the American people on a matter of public concern, the election. Why isn't that squarely entitled to immunity?

Sellers: What he spoke about was a campaign issue, seeking to secure reelection, not just election integrity as a general issue

Mehta: Why isn't the right way to look at this that Trump was advocating for Congress to act in a certain way?

Sellers: There's no legitimate role for a president in the counting of ballots, and no legitimate role for fomenting an insurrection directed at Congress

Mehta points out that SCOTUS said in a key Nixon-era case, Fitzgerald (see: oyez.org/cases/1981/79-…), that a court can't probe what a president's motives were. Sellers said they're not asking the court to do that, just have to look at Trump's actual words and actions

Mehta: Where would you have the court draw a line? Isn't this like Fitzgerald's firing under Nixon?

Sellers: No — personnel actions fall w/in presidential authority. Campaign activity never been viewed as part of normal functioning of the prez, plus fomenting insurrection issue

Re: members of Congress having standing to sue, Sellers says this is not like the Raines case (see: oyez.org/cases/1996/96-…) where SCOTUS said members couldn't sue over line item veto, because Jan. 6 involved a direct injury to members' ability to discharge their duties

Philip Andonian, a lawyer for Rep. Swalwell, adds there is precedent for a prez being held accountable by a court for speech — notes a judge found Bill Clinton in contempt for testimony about his relationship w/ Monica Lewinsky in the Paula Jones case washingtonpost.com/wp-srv/politic…

Binnall is back up, Mehta goes back to the Q of whether the immunity extends to campaign activity. Binnall says drawing that kind of line would lead to too vague of a standard and be unworkable, but even if that were the standard, Trump's Jan. 6 speech was not campaign activity

Up next is Giuliani's lawyer Joseph Sibley, arguing that the plaintiffs failed to plausibly allege that there was a conspiracy under the law — not enough to all be on the same "team," there has be a "huddle," that is, a meeting of the minds to conspire to achieve an illegal act

Mehta notes that the law doesn't require coconspirators to literally all meet and agree to do something, they don't even need to all know one another. He asks: There was a public call to action followed by action - why don't the allegations in the complaint meet that standard?

(One thing that is important to note here is that at this stage, the court accepts the allegations in a complaint as true, but isn't deciding that. In weighing a motion to dismiss, a judge is deciding if plaintiffs adequately pled claims and can proceed to the next stage)

Sibley: No way you can construe statements made by Jan. 6 speakers to join a conspiracy and go to the Capitol and commit crimes

Mehta: "Why not?" He notes this part of complaint alleging crowd responded to Trump's remarks by calling for storming of Capitol, and Trump kept going

Sibley argues that the standard is that a speech has be an invitation to commit violence or do something unlawful, and there's nothing overtly unlawful about urging people to go to the Capitol and protest

Mehta: What do I do with the allegation that Trump failed to act? That is, that it took as long as it did for him to tell people to stop. Isn't that evidence he was ratifying the alleged agreement?

Sibley: Not relevant to proving whether there was an invitation to act.

Mehta: If words misconstrued and led to violence, wouldn't a reasonable person come out and say, stop? Notes Don Jr. texting Mark Meadows ("He's got to condemn this shit ASAP," see: buzzfeednews.com/article/salvad…)

Sibley: First Amendment applies even if speech inspires violence

Binnall is back up. Mehta presses him the overarching elements of a civil conspiracy. Is an invitation to engage in tortious conduct and acceptance of that invitation enough to establish a meeting of the minds? Binnall tries to avoid a yes/no answer, says it has to be specific

Mehta asks Binnall what he does with allegation Trump failed to immediately try to stop the violence. Binnall says a prez can't be liable for not acting. Mehta says it's about proving the plausibilty of the theory that there was some kind of agreement

Mehta notes that in the civil suit re: the violence in Charlottesville, there was a similar allegations against Richard Spencer inciting and then not doing anything to stop the violence

After briefly hearing from the Oath Keepers' lawyer re: conspiracy (he generally agrees with Mehta's description of the standard, insists plaintiffs ultimately will lose trying to tie together the different actors), Mehta is taking a break. We're two hours in, not close to done

We're back on the line, up next is Joseph Sellers for the plaintiffs, arguing that they've adequately pleaded the conspiracy claim for the case to go forward

Key exchange:

Mehta says he's struggling with the conspiracy question. The cases are alleging a "very unusual" and "problematic" conspiracy in that there isn't the typical direct communication among co-conspirators that you'd see when this type of claim is brought

Sellers replies that the circuit doesn't requirefse all d to conspire together, notes the judge seems more convinced they alleged conspiracy between Oath Keepers and Proud Boys. Mehta quips they'd prob be disappointed with a result that keeps OKs/PBs in and dismisses Trump

Sellers says the fact that Trump's tweets reached a broad audience doesn't mean they can't be part of the conspiracy effort. He argues it wasn't just Trump speaking + crowd reacting, but there was engagement, plus Trump's encouragement/refusal to say stop asap once riot started

Sellers also points out that they allege Giuliani was trying to call members of Congress to ask them to slow down the count of the election results

Mehta asks Swalwell's lawyer Andonian how they get conspiracy with Don Jr., since there's less about him making calls to action + some evidence (coverage of Meadows text) he took steps to stop the violence. Andonian replies you have to take speech in context of everything else

Andonian highlights Don Jr. saying to the crowd re: Republicans in Congress: "You can be a hero, or you can be a zero ... If you’re gonna be the zero, and not the hero, we’re coming for you, and we’re gonna have a good time doing it."

Heading into the fourth hour of this hearing, we've reached the First Amendment arguments

Jesse Binnall argues Trump's comments were different from someone saying go commit a specific act of violence and that violence happening. Here you have political dialogue, using very common words, and you have reactions that take place afterwards by third parties

Binnall starts to make a comparison to the 2017 shooting at the GOP practice for the Congressional baseball game + connection to Bernie Sanders. Mehta cuts him off, saying he wants to focus on this case. Binnall says you can't make decisions about political speech in a vacuum

Mehta takes a step back after that tense exchange with Binnall, says he hopes the hearing has demonstrated that he doesn't think this is an "easy case" and that he's struggled with the constitutional questions

Mehta asks Binnall if he can consider the claim that Trump's speech included false statements. Binnall disputes it was false, but says truth/falsity isn't relevant in deciding First Amendment protection

Plaintiffs' lawyer Joseph Sellers argues they've plausibly alleged Trump's speech incited the riot, and says speech can be protected by the First Amendment and still be an element of an unlawful conspiracy

Another instance where Mehta has said he's struggling, this time with the interplay of First Amendment protections for political speech that involves words often used in political speech, with the allegation that Trump's speech was an element of the conspiracy

Rep. Mo Brooks, who is representing himself, is now reading a statement re: his argument that he was acting within the scope of his employment, which means he's shielded from being sued individually

Mehta asks if Brooks was acting in a campaigning capacity, as opposed to as an elected official. Brooks says he rejects that. Mehta notes his speech referenced 2022/2024. Brooks says he was generally urging people to do their civic duty, not advocating re: a specific campaign

Donald Trump Is Once Again In Court Arguing He Can’t Be Sued For What He Said While President
buzzfeednews.com/article/zoetil…

It was a long, eventful afternoon in court as Donald Trump's lawyer argued to get three lawsuits tossed out that accuse him of conspiring to incite the Capitol riot. On Trump's sweeping immunity argument, and what the judge said he's struggling with: buzzfeednews.com/article/zoetil…