Heather Cox Richardson | Letters from an American
January 10, 2022
Today, U.S. District Judge Amit Mehta held a hearing in Washington, D.C., to determine whether three lawsuits against former president Trump and a number of his loyalists should be permitted to go forward.
The lawsuits have been filed by Democratic members of the House and Capitol Police officers injured on January 6 against Trump, lawyer Rudy Giuliani, Donald Trump Jr., Representative Mo Brooks (R-AL), and others. The plaintiffs are trying to hold Trump and his team liable in a civil suit for inciting the January 6 insurrection.
But the questions in these three cases mirror those being discussed by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, and touch on whether the former president committed a crime by inciting insurrection or by standing back while the rioters stopped the official proceedings of Congress (which itself is a crime).
Most significantly, Judge Mehta grappled with the meaning of Trump’s refusal to call off the rioters for 187 crucial minutes during the insurrection as they stormed the Capitol. This is a key factor on which the January 6th committee is focused, and Mehta dug into it.
While Trump’s lawyer tried to argue that the president could not be in trouble for failing to do something—that is, for failing to call off the rioters—the judge wondered if Trump’s long silence indicated that he agreed with the insurrectionists inside the Capitol. “If my words had been misconstrued…and they led to violence, wouldn’t somebody, the reasonable person, just come out and say, wait a second, stop?” he asked.
The judge also tried to get at the answer to whether the actions of Trump and his loyalists at the rally were protected as official speech, or were part of campaign activities, which are not protected. Brooks told the judge that everything he did—including wearing body armor to tell the crowd to fight—was part of his official duties. The Department of Justice said this summer that it considered the rally a campaign event and would not defend Brooks for his part in it.
Trump’s lawyer, Jesse Binnall, argued that Trump is absolutely immune from any legal consequences for anything he said while president. “So the president, in your view, is both immune to inciting the riot and failing to stop it?” Mehta asked.
When Binnall suggested the judge was holding Trump to a different standard than he would hold a Democrat, Mehta called the charge “simply inappropriate.”
For all their bluster before the media, key figures in the events of January 6 appear to be increasingly uncomfortable. Last night, Representative Jim Jordan (R-OH) joined other Trump administration figures when he announced that he would not appear before the January 6th committee. It has asked him to testify voluntarily, since he has acknowledged that he spoke to Trump on January 6, and since the committee has at least one text from him appearing to embrace the theory that the election results could be overturned.
Jordan claimed that the committee has no legitimate legislative purpose, although a judge has said otherwise.
Observers today noted that Jordan is denying that he recognizes the authority of Congress, and pointed out that in 2015, then–Secretary of State Hillary Clinton did, in fact, recognize that authority when she testified for 11 hours before a Republican-led House Select Committee on Benghazi.
Today, establishment Republicans showed some resistance to Trump’s attempt to remake the Republican Party as his own when they made a desperate push to stop litigating the 2020 election and instead to move forward. Senator Mike Rounds (R-SD) appeared Sunday on ABC News, where he said the 2020 election was “fair” and that Trump lost. “We simply did not win the election, as Republicans, for the presidency,” he said. The former president then issued a rambling statement asking: “Is he crazy or just stupid?”
Rounds retorted that the party must focus on “what lies ahead, not what’s in the past.” Senator MItt Romney (R-UT) jumped aboard, tweeting that Rounds “speaks truth knowing that our Republic depends upon it.” Alaska Senator Lisa Murkowski actually made fun of Trump on Friday with a local political news outlet, mocking his endorsement of the Alaska governor’s reelection only if the governor did not endorse Murkowski.
In North Carolina today, eleven voters filed a challenge with the State Board of Elections to Madison Cawthorn as a candidate for reelection on the grounds that he is disqualified by the third section of the Fourteenth Amendment, which prohibits from holding office anyone “who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
North Carolina law says “[t]he burden of proof shall be upon the candidate, who must show by a preponderance of the evidence of the record as a whole that he or she is qualified to be a candidate for the office.”
In late December 2021, Cawthorn told supporters to “call your congressman and feel free—you can lightly threaten them…. Say: ‘If you don’t support election integrity, I’m coming after you. Madison Cawthorn’s coming after you. Everybody’s coming after you.’” Cawthorn spoke at the January 6 “Stop the Steal” rally before the crowd broke into the Capitol, suggesting he supported the attack, then voted against accepting the certified ballots from certain states. Cawthorn continues to question the legitimacy of Biden’s election and, last summer, warned there could be “bloodshed” over future elections.
The group filing the challenge promised it would be the first of many.