Clear legal analysis from Jennifer Rubin in a recent Washington Post, laying out the reasons Judge Amit Mehta’s recent ruling against the strained claims of our obsessive ex-president is bad news for 45. Mehta ruled that Trump is not immune from a lawsuit under the 1871 Ku Klux Klan Act, which provides punishment for conspiracy to deprive parties of their Fourteenth Amendment rights. Here that violation was done by intimidating officials and preventing them from carrying out their legal duties. The op ed, Trump’s legal problems are about to get much worse, is well worth a read.
Of the angry ex-president’s argument that he is absolutely immune from the lawsuit since he was acting in his official capacity as president when he whipped up an angry mob he’d assembled, Judge Mehta set out several ways the rally and riot were beyond the scope of presidential duties:
[Trump] repeatedly tweeted false claims of election fraud and corruption, contacted state and local officials to overturn election results, and urged the Vice President to send Electoral ballots back for recertification. The President communicated directly with his supporters, inviting them to Washington, D.C., to a rally on January 6, the day of the Certification, telling them it would be “wild.” He directly participated in the rally’s planning, and his campaign funded the rally with millions of dollars. At the rally itself, the President gave a rousing speech in which he repeated the false narrative of a stolen election. The crowd responded by chanting and screaming, “Storm the Capitol,” “Invade the Capitol,” “Take the Capitol right now,” and “Fight for Trump.” Still, the President ended his speech by telling the crowd that “we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after these words, he called on rally-goers to march to the Capitol to give “pride and boldness” to reluctant lawmakers “to take back our country.” Importantly, it was the President and his campaign’s idea to send thousands to the Capitol while the Certification was underway. It was not a planned part of the rally. In fact, the permit expressly stated that it did “not authorize a march from the Ellipse.” From these alleged facts, it is at least plausible to infer that, when he called on rally-goers to march to the Capitol, the President did so with the goal of disrupting lawmakers’ efforts to certify the Electoral College votes.
as to Trump’s First Amendment claim:
Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are plausibly words of incitement not protected by the First Amendment. … It is reasonable to infer that the President would have known that some supporters viewed his invitation as a call to action …
So, when the President said to the crowd at the end of his remarks, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” moments before instructing them to march to the Capitol, the President’s speech plausibly crossed the line into unprotected territory.