US President Donald Trump speaks during the first meeting of the Presidential Advisory Commission on Election Integrity in the Eisenhower Executive Office Building next to the White House in Washington, DC, July 19, 2017. / AFP PHOTO / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
  • A federal judge in Washington, DC, questioned former President Donald Trump‘s actions during his speech on January 6, 2021, as he considers for the first time whether Trump is immune from liability related to his supporters attacking the US Capitol.
  • During a court hearing Monday, Judge Amit Mehta pointed out repeatedly that Trump on January 6 asked the crowd to march to the Capitol, but that he didn’t speak up for two hours asking people to stop the violence.
  • US District Judge Amit Mehta also rejected one lawyer’s claim that Trump urged his supporters to be peaceful on that day, telling the attorney to “stick with the facts.”

During a court hearing Monday, Mehta said that for a “two-hour period” on the day of the siege, Trump did not “take to Twitter or to any other type of communication and say, ‘Stop. Get out of the Capitol. What you are doing is not what I wanted you to do.'”

“What would you have me do with the allegation that the president did not act?” Mehta, an Obama appointee who joined the federal bench in 2014, asked.

His question came during oral arguments over a trio of civil lawsuits filed by House Democrats and Capitol Police officers that allege Trump’s incendiary rhetoric incited the Capitol breach. At a rally that preceded the siege, Trump told his supporters, “If you don’t fight like hell, you’re not going to have a country anymore.”
In court Monday, Mehta asked whether Trump’s inaction could be considered “ratification” of that statement.

In the same hearing, Trump’s lawyer Jesse Binnall pushed back against the assertion that the former president could face legal consequences for action he didn’t take.
“The president cannot be subject to judicial action for any sort of damages for failing to do something,” Binnall said.

He added that the president told his supporters to “peacefully and patriotically” make their voices heard on January 6, 2021.

But that statement was outweighed, Mehta said, by Trump’s earlier calls to “fight like hell” against the 2020 election results. Mehta said there was no doubt “threats” and “intimidation” were used on the day of the insurrection. He also said the main question was whether Trump’s actions and statements incited the violence.
“Let’s stick with the facts,” Mehta said, adding that he wasn’t “interested” in “whataboutism.”

He continued pressing Binnall on whether Trump’s call for his supporters to march to the Capitol and his use of words like “fight” and “show strength,” which were followed by Trump’s supporters storming the Capitol, satisfied the standards required to establish conspiracy.

“No,” Binnall said.

“So the president, in your view, is both immune to inciting the riot and failing to stop it?” Mehta asked.

Binnall replied that “the president cannot be subject” to any judicial action because he “failed to do something.”
Joseph Sellers, a lawyer for House Democrats, countered that claim and said the “fervor” and “energy” of Trump’s supporters directly before the Capitol riot indicated that the president knew what they were planning to do.

But Mehta pushed back, telling Sellers the allegation of a conspiracy in this case was “unusual” and could be “problematic” because the lawsuit did not allege there was a direct meeting between the defendants, which include Trump, his then-lawyer Rudy Giuliani, and the far-right groups Proud Boys and Oath Keepers.

Members of the House select committee on Jan. 6 have said they could consider criminal referrals to the Justice Department for Mr. Trump and others.
Members of the House select committee on Jan. 6 have said they could consider criminal referrals to the Justice Department for Mr. Trump and others. Credit: Stefani Reynolds for The New York Times

Alleging a conspiracy in the absence of such a link is “dangerous” because the defendants couldn’t necessarily have controlled the reaction of Trump’s supporters, the judge said.

Sellers conceded the point but added that Trump “ratified” his supporters’ actions after the Capitol riot.
Trump’s initial silence during the Capitol breach has also come under scrutiny from the special House committee investigating the January 6, 2021, attack. The panel’s top Republican, Rep. Liz Cheney, said last month that the committee was exploring the question of whether Trump, “through action or inaction,” sought to impede Congress’ certification of now-President Joe Biden’s electoral victory.

The committee has released texts showing that Trump’s allies — including his eldest son, Donald Trump Jr., and Fox News hosts — pleaded with former White House chief of staff Mark Meadows to have Trump order the violent mob to stand down. In the lawsuits against Trump, House Democrats pointed to his initial silence during the attack as evidence of an agreement with the mob to block the certification of Biden’s victory.

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Mike Omoniyi is the Founder and Editor In Chief of The Common Sense Network. He oversees and is responsible for the direction of the Network. Mike is an activist, singer/songwriter and keen athlete. With a degree in Politics Philosophy and Economics, MA in Political Science (Democracy and Elections) and an incoming PhD on a study of Cyber-Balkanisation, Mike is passionate about politics and the study of argumentation. He is also the Managing Director of a number of organisations including, Our God Given Mission, The BAM Project and The Apex Group.

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