Thread by @KlasfeldReports

In a hearing scheduled to begin shortly, Trump's lawyers will try to dismiss a lawsuit accusing him, Rudy Giuliani, the Proud Boys and the Oath Keepers of violating the Ku Klux Klan Act in connection with the Jan. 6 attack on the U.S. Capitol.

Follow here, @LawCrimeNews.

Judge Mehta will hear arguments in three civil cases simultaneously.

The first is the one I describe at the top of the thread.

lawandcrime.com/u-s-capitol-si…

Eric Swalwell's suit:

lawandcrime.com/u-s-capitol-si…

The Capitol Police suit:

lawandcrime.com/u-s-capitol-si…

As the hearing begins, Trump's lawyer Jesse Binnall claims that the complaints are "full of propaganda meant to achieve a political rather than a legal objective."

Judge Mehta asks Binnall whether he "would have me ignore what [Trump] said in his entirety" to determine whether Trump was immune.

Binnall replies, "Yes, sir."

Judge Mehta appears skeptical, pressing him about Supreme Court guidance that "context matters" regarding the scope of immunity.

Binnall claimed that the "Jan. 6 rally" was not related to the Trump campaign, when the judge interrupts him.

"That's not true, at least not according to the allegations," Judge Metha notes, adding that he has to accept those allegations as true on a motion to dismiss.

Judge Mehta presses him on the parts of the lawsuit about Trump's call to Georgia officials.

"How is he carrying out the function of the presidency by calling a state official?" he asks.

Binnall says Trump has to take care that "the laws are faithfully executed."

"Not the state laws," Judge Mehta interrupts.

The judge asks: "Is there anything that a president can say or do in his capacity as a candidate" that would not carry immunity?

Binnall says he can't imagine an example under the "say" category.

Judge Mehta asks Binnall whether the president would be absolutely immune from suit if he made a defamatory statement at a rally.

"Yes, sir," Binnall replies again.

(Trump's legal team again with an incredibly expansive of presidential immunity.)

Binnall reiterates that he cannot think of an example of anything a president could say that wouldn't be covered by immunity.

Background on Binnall: He's the attorney pushed this Nevada lawsuit full of rejected election conspiracy theories. lawandcrime.com/2020-election/…

Joseph M. Sellers leads off with arguments for the lawmakers bringing the suit, scoffing at the claim that presidential immunity would cover all speech before a crowd.

"He could be promoting treason," Sellers said, referring to the scope under that theory.

Judge Mehta pushes back on that point a bit, noting that the immunity at issue is civil immunity.

Seller reiterates his argument: "The president could promote treason in a public forum, and by Mr. Binnall's argument," the court would be "powerless" to do anything about it.

"That's inconceivable as something that the Supreme Court had in mind," he adds.

Mehta: "Where would you have the court draw the line?"

The judge has repeatedly cited the Nixon-era Fitzgerald case, holding that the court cannot probe a president's motives.

Sellers says that whatever the scope is, Trump's actions fall "well outside it."

Another plaintiffs' lawyer cites a famous counterexample to Binnall's notion that a president could never be held liable for speech: Bill Clinton, for lying under oath.

Back up on rebuttal, Binnall speaks about "grey areas" of official acts.

Judge Mehta responds: "Why isn't campaigning a bright line?"

Binnall gives a multi-part answer, arguing:

(1) that campaign speech does not lose immunity if it could also be speech falling under an official action.
(2) the Jan. 6 speech was not campaigning.
(3) motives cannot be examined under the Fitzgerald precedent.

Multiple attorneys for the defendant quote Trump telling the mob to “peacefully and patriotically make [their voices] heard."

Judge Mehta notes they are outweighed by the calls for fighting and strength.

Judge Mehta cites the lawsuit against Richard Spencer in the Charlottesville case, where the organizers were found liable for the violence.

Continuing the thread here.

https://twitter.com/KlasfeldReports/status/1480635155048022021?s=20

Judge Mehta says that what makes these conspiracy allegations "unusual," if not "problematic," is there is no claim of a direct meeting between Trump, Giuliani, the Proud Boys and the Oath Keepers.

The communications cited in the complaint were public tweets.

Judge Mehta muses that this could get "dangerous" because speakers can't always control the reaction of their audience.

Joseph Sellers says that could be true, but there's "more here."

Trump "ratified" their reactions after the fact, Sellers said.

Sellers notes that the complaint alleges that Giuliani called members while the Capitol was under siege to urge lawmakers to "slow it down" and "delay" the Electoral Count vote.

"That, I think, goes to the heart of the conduct that Section 1985(1) was intended to prohibit."

Section 1985(1) is the KKK Act.

Another plaintiffs' lawyer quotes Trump's "We love you" quote to the "insurrectionists," describing it as "ratification."

With Trump's remarks after the siege, the plaintiffs' lawyer says: "It becomes clear that this was not an out-of-control audience. This was an audience that did exactly what this man asked for them to do."

Observation:

Judge Mehta is sharply questioning all parties, not tipping his hand as to his leanings.

(This is also a very standard part of oral arguments.

For example, judges sharply questioned the government on their use of the obstruction statute against Jan. 6 defendants—and upheld the use of the statute, uniformly.)

Judge Mehta notes that Brandenburg v. Ohio doesn't require an express command.

During arguments on the 1st Amendment, Judge Mehta cites the case of Claiborne Hardware and reads the highlighted passage about the passage of time between the speech and the violence.

He asks why, if time raises a "substantial question," the suits shouldn't survive dismissal.

Judge Mehta asks whether the cases could go forward if the speech is protected under Brandenburg.

Plaintiffs' attorney: I don't think so.

Up now: Mo Brooks, arguing on his own behalf.

Brooks says that he was acting under the scope of his employment, an argument the DOJ rejected.

Background: lawandcrime.com/u-s-capitol-br…

Brooks notes that Maxine Waters, a plaintiff, objected to the Electoral College count certifying Bush's election.

Judge Mehta says that's he's reviewing a different question, which is on what capacity Brooks made his speech at the Ellipse.