During Monday’s court hearing, Judge Amit Mehta repeatedly noted that on January 6 Trump asked the crowd to march to the Capitol, but did not speak for two hours to ask people to stop the violence.
“Words are hard to undo,” Mehta said. “You have a window of about two hours where the president doesn’t say, ‘Stop, get out of the Capitol. That wasn’t what I wanted to do.'”
“What do I do about the fact that the president didn’t immediately denounce the behavior… and sent a tweet that arguably made matters worse?” asked the judge. “Isn’t that, from the point of view of reasonableness, the president reasonably agreed with the behavior of the people inside the Capitol that day?”
Mehta’s questioning line is an alarming sign for Trump, at least as people seek redress through civil litigation after the rebellion. Some of the lawsuits in dispute use civil rights law, known as the KKK law, which allows for lawsuits to be brought when officials are intimidated from performing their public duties.
It is the first major test of whether civil litigation is a viable path to holding Trump accountable for violence toward Congress, after the Senate acquitted him in his second impeachment trial last February.
If Trump’s call to action at the rally was misinterpreted by the crowd, and they still turned violent, “wouldn’t a reasonable person say, ‘That’s not what I meant?'” Mehta asked one of the lawyers against the rebellion lawsuits. The judge noted that even Donald Trump Jr., another defendant in court on Monday, sent a text message to the White House chief of staff before Trump spoke, asking the president to condemn the violence.
Trump and his close supporters say they are protected by the First Amendment, that Trump and others were speaking on January 6 as public officials and that they did not agree to be part of a conspiracy with the violent mob by law.
Benall also argued that Trump encouraged the crowd to act “peacefully and patriotically.”
“Do you want me to ignore what [Trump] Kamel said? ”
“Saying a speech to Congress is equivalent to a campaign speech” does not appear to be what the Supreme Court has ruled on the limits of presidential immunity, Mehta said.
Lawmakers say they were threatened by Trump and others as part of a plot to stop the congressional hearing that will certify the 2020 presidential election on Jan. 6, according to the complaints. They argue that Trump should take responsibility for directing the attacks.
Swalwell, who described his position on the case in an interview on CNN on Sunday, said he expected Monday’s hearing to be long. However, he indicated that he and others will not be allowed into the courtroom due to the recent surge in Covid-19 cases. Instead, participants will speak to the judge via videoconference.
If the judge rules in favor of Swalwell and others who have sued, the California Democrat said he expects “to speed it up, and hopefully we’ll move on to more affidavits and discovery of evidence very soon.”
Police officers, in their lawsuit, said they were hit by chemical sprays and objects the crowd threw at them, such as water bottles and banners, because Trump inspired the crowd.
“The defendant’s followers, already warmed up by his fiery months of rhetoric, were motivated to take direct action,” The suit of Blassingame and Hempy. “If Trump had directly committed the behavior of his followers, this would have exposed Trump to direct responsibility.”
Trump and his top advisers have not been charged with any crimes. Several proud boy leaders and oath guards who were criminally charged with conspiracy pleaded acquittal.
The congressman defends himself
In an unusual position for a court hearing, Brooks defended himself on Monday, saying he was acting out his job as a member of Congress when he prepared for the pro-Trump rally on Jan. 6.
The Justice Department argued that Brooks should be alone during his prosecution — not be protected by the government, because his speech was at an election event and he was defending Trump.
When asked on Monday if Brooks had spoken out as propaganda for Trump, he said he would “reject it.” “The name of the campaign,” he added, echoing Trump’s lawyers’ claims that the Trump 2020 campaign no longer exists when he lost the election in November, and that he was speaking as president.
Brooks argued in his January 6 speech—when he called on Congress to “kick the ass”—it was generally about the Electoral College vote planned for that day.
Mehta seemed somewhat sympathetic to Brooks’ position. If ruled in his favour, it could leave Brooks off the hook from paying damages related to allegations of injury to Democratic lawmakers and police.
The judge, questioning the Justice Department, quoted parts of Brooks’ speech in which he spoke of a planned Congressional vote that day.
It is even customary for outside lawyers to discuss cases when their clients are suing or being sued, even if the clients themselves are lawyers.
Brooks appeared to be speaking from his office in a video conference with the court. When he wasn’t speaking, he wore a black mask to cover his nose and mouth, printed with two words in red: “Freedom of speech.”
Calls to fight
The Democratic lawmakers’ cases focus in particular on the language used by Trump, Brooks and others at the “Stop Theft” rally at Ellipse in Washington, D.C., just before the attack.
Trump told the crowd to “show strength” and “walk down Pennsylvania Avenue,” for example, while Brooks said in his speech, “Today is the day that American patriots start taking names and kicking.” Also at the rally, Giuliani told the crowd, “Trial by combat.”
After the speeches, hundreds of pro-Trump protesters marched to the Capitol, severely beating law enforcement officers guarding the building and breaking through barricades and windows to enter. Then several congressional offices were looted and some chanted “betrayal” as they swept the Senate floor, from which lawmakers and then Vice President Mike Pence had been evacuated minutes earlier.
“The president was very clear that he was there at Ellipse as president. He was calling on Congress to take or not take certain actions… We are a dead center on immunity,” Benall said in court on Friday.
After the Senate voted not to convict Trump last February, Senate Minority Leader Mitch McConnell cited the lawsuits as a means of retaliation.
The Kentucky Republican said Trump “remains responsible for everything he did while in office” and noted that “we have a civil lawsuit” from which the president will not be immune.
Lawsuits can take months or even years for solutions to be found.
This story has been updated with details from the court hearing.
CNN’s Sarah Fortinsky contributed to this report.