Judge mulls whether Trump’s silence on Jan. 6 could amount to ‘agreement’ with rioters

Donald Trump’s hours of silence while a violent mob ransacked the Capitol — egged on by his own words and tweets — could be plausibly construed as agreement with rioters’ actions, a federal judge suggested Monday.

U.S. District Judge Amit Mehta made the analysis as he pressed Trump’s lawyers about their efforts to dismiss a series of lawsuits against the former president seeking to hold him financially liable for inciting the Jan. 6 insurrection.

“What do I do about the fact the president didn’t denounce the conduct immediately?” Mehta wondered, homing in on a central focus of congressional investigators probing Trump’s conduct that day. “Isn’t that, from a plausibility standpoint, enough to at least plausibly infer that the president agreed with the conduct of the people that were inside the Capitol that day?

Mehta’s questioning prompted Trump’s attorney, Jesse Binnall, to push back, forcefully arguing that Trump can’t conceivably face legal consequences for actions he did not take.

“The president cannot be subject to judicial action for any sort of damages for failing to do something,” Binnall said.

The exchange was potentially the most significant in an explosive — and lengthy — hearing on three lawsuits filed against Trump for his actions leading up to and on Jan. 6. Two of the suits were filed by Democratic members of Congress, and one was brought by a pair of Capitol Police officers injured during the Jan. 6 fighting. The cases have been on file for more than nine months, but the hearing Monday was the first substantive one on the issues involved.

One of the civil suits under discussion Monday was filed by Rep. Bennie Thompson (D-Miss.) last February. Ten other Democratic members joined the suits in April, and Thompson withdrew from the matter after Speaker Nancy Pelosi named him chair of the Jan. 6 select committee. Republicans have since used his role in filing the civil case to challenge his impartiality in his new capacity leading the House panel.

Thompson’s panel is intensely focused on Trump’s minute-by-minute actions on Jan. 6, particularly during the two hours after the Capitol was breached and Trump remained largely quiet, issuing tweets that arguably inflamed the crowd further while ignoring multiple urgent calls for him to publicly intervene. Mehta’s decision to draw out discussion on that subject forced Trump’s legal team to contend with it publicly for the first time.

“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?” Mehta wondered. He then referred explicitly to evidence unearthed by the Jan. 6 select committee, noting that Trump’s son Donald Trump Jr. had done just that, imploring White House chief of staff Mark Meadows to get his father to issue a forceful public denunciation of the violence. But Trump didn’t issue any public calls for the rioters to go home for two hours after police lost control of the Capitol.

Mehta is primarily focused on whether to permit the lawsuits against Trump to move forward, and he is largely determining, at this stage, whether the complaints against the former president are plausible and legally sound.

In the course of the arguments, Trump’s lawyers offered an exceptionally broad view of Trump’s immunity from civil lawsuits for his acts as president, claiming that virtually every statement Trump made was “immune.”

“That absolute immunity of the presidency is very important,” Binnall contended.

Mehta repeatedly pressed Binnall to come up with an example of anything a president could say in office that could result in civil liability. “I cannot think of an example,” Binnall replied. “The duties of the president are all-encompassing.”

Democratic lawmakers' only recourse against Trump’s actions on Jan. 6 was impeachment and that failed, Binnall argued.

Mehta is intimately familiar with the ongoing criminal prosecutions into the Jan. 6 storming of the Capitol. He is overseeing the largest criminal case (in terms of number of defendants) to emerge from those events: the prosecution of 19 members of the Oath Keepers militia network.

In recent weeks, Mehta has made clear that he views the role of powerful actors — including Trump — as an important driver of the attack on the Capitol. During sentencing for one Jan. 6 defendant, John Lolos, Mehta said he viewed the low-level Jan. 6 defendants as “pawns” paying the price for the lies of other, more powerful players.

“People like Mr. Lolos were told lies, told falsehoods, told our election was stolen when it clearly was not,” Mehta said at the time. “We’re here today deciding whether Mr. Lolos should spend 30 days in jail when those who created the conditions that led to Mr. Lolos’ conduct, led to the events of Jan. 6 [haven’t been] held to account for their actions and their word.”

During the hearing, Binnall appeared to be laying the groundwork to defend the former president against a potential criminal case over another episode: the Jan. 2, 2021, phone call in which Trump pressured Georgia Secretary of State Brad Raffensperger to “find” enough votes to reverse Trump’s defeat in the state. Fulton County prosecutors are examining this call and weighing potential criminal charges.

But asked by Mehta whether Trump has legally immunity for his Georgia call, Binnall replied, "Yes, sir, he does."

“The core constitutional responsibility of the president is to see that the laws are faithfully executed,” Binnall added. “It’s part of the general duty of the president to speak freely and frankly on matters of public concern.”

Mehta later observed that the issues before the court don’t involve criminal immunity, but rather the scope of presidential immunity from civil suits. However, all involved in the hearing seemed aware of the growing drumbeat in some quarters for a criminal prosecution of the former president.

Mehta, an appointee of President Barack Obama, sounded skeptical of Binnall’s broadest arguments for absolute immunity for Trump’s actions in office. However, the judge seemed more open to the Trump camp’s arguments that his statements on Jan. 6 were political and had at least some relation to his official duties.

“Where would you have a court draw the line?” Mehta asked Joseph Sellers, a lawyer representing Democratic lawmakers pressing the suit.

Sellers insisted that while some cases about presidential statements could be open to debate, extreme calls by a president for illegal action against the government had to be outside the scope of the special protection that courts have accorded to the chief executive.

“By Mr. Binnall’s argument, the president could promote treason in a public forum and the court would be powerless to assess whether his conduct … was immune. That’s just — that’s inconceivable,” Sellers said.

Sellers said Trump’s immunity should be limited to acts or statements involving his official powers as president, but Trump’s attorney noted that some topics presidents often address — such as the Senate’s filibuster rule — have no direct role for the president to play.

Sellers also argued that Trump’s statements on Jan. 6 fit squarely into the kind of election-related conduct that has long been considered outside a president’s official duties.

“Campaign activity has never been viewed as within the normal functioning of the president,” Sellers said. “I realize the court wants to articulate a standard that’s easily administered, and I guess I’m asking the court to consider that, wherever the close-call standard is, this falls well outside of it.”

Patrick Malone, an attorney for a pair of U.S. Capitol Police officers suing Trump, said immunizing statements like the ones Trump made on the Ellipse on Jan. 6 would create a bizarre disparity with other presidential candidates.

“Are we really saying that if you happen to be the incumbent in office you are immune … the incumbent would be immune but his adversary, his opponent, would not be immune?” Malone said. “I don’t see how that could be.”