A judge on Friday ruled that a lawsuit against Donald Trump filed a year ago by East Bay Congressman Eric Swalwell could move forward, acknowledging that it is an unprecedented civil prosecution of a U.S. president.
Swalwell filed his suit in March 2021, using an obscure, Reconstruction-era law called the Ku Klux Klan Act, which was written to protect both freed slaves and politicians who were being threatened at the time by extralegal mobs in southern states. The law makes mob violence, and the incitement of it, a federal crime, and Swalwell contends that he suffered emotional distress as a result of the former presidents incitement of mob action on January 6th, 2020.
A group of members of Congress led by Rep. Bennie Thompson (D-MS) and Rep. Karen Bass (D-CA) filed a similar suit against Trump last year also using the Ku Klux Klan Act, following Trump's second impeachment and second acquittal by the Republican-led Senate. A separate suit was filed by a pair of Capitol Police officers, James Blassingame and Sidney Hemby, who were on duty and injured on January 6th.
Swalwell's suit also named Rudolph Giuliani and Donald Trump Jr. as defendants, but in a 112-page ruling, D.C. District Judge Amit Mehta released them from the suit and said the prosecution against the former president could proceed. Mehta also ruled that prosecutions of other defendants from the militant far-right groups the Proud Boys and the Oath Keepers could proceed — they were named in the suit by the Congressmembers, whom Mehta refers to as the Bass Plaintiffs because Rep. Thompson removed himself from the suit when he accepted a committee leadership position last year.
Attorneys for Trump have sought to dismiss the suits on the basis of the First Amendment, but Judge Mehta takes pains to dissect the ways in which Trump's actual words during the January 6th rally a the Ellipse amount to incitement and therefore would not be protected speech.
"Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a President’s speech,” Mehta writes. “But the court believes this is that case. Even Presidents cannot avoid liability for speech that falls outside the expansive reach of the First Amendment. The court finds that in this one-of-a-kind case the First Amendment does not shield the President from liability.”
Mehta also acknowledges that "To deny a President immunity from civil damages is no small step," and he writes, "The court well understands the gravity of its decision. But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity."
Mehta says that Trump spent 75 minutes rehashing his multiple, debunked claims of election fraud in multiple states, repeating that the 2020 election was stolen from the people he was speaking to. He then instructed them to march to the Capitol, and implied that it was up to them to keep the "stolen" election from be certified, because Vice President Mike Trump was too "weak" to do it himself.
All of this is a clear-cut example of incitement of a mob, Mehta says, and he rules against motions by Trump and the right-wing groups to dismiss the three lawsuits.
"Judge Mehta’s ruling is a complete vindication of my claims against Donald Trump for inciting an attack against the Capitol," Swalwell said in a statement Friday. "Trump led a conspiracy to violently interfere with the January 6 Joint Session of Congress. With this ruling, I will move forward to depose Donald Trump and seek all relevant evidence surrounding January 6."
A date has not been set for a civil trial to begin — and it's not clear whether this ruling will result in three separate trials moving forward, or if the cases could be tried together. As the Chronicle reported Friday, the prospect of a trial could mean there will be court-ordered investigations of communications that Trump had before, during, and after January 6th — communications that have already been sought by the January 6th congressional committee.
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