After a Six Hour Hearing on Lawsuits against Trump, the Only Clear Thing is Don Jr Is in the Clear

We just finished a 6-hour hearing before Judge Amit Mehta in the consolidated lawsuits (by Bennie Thompson and other members of Congress, by Eric Swalwell, and by some cops) against Trump and others for January 6.

As the judge presiding over the Oath Keepers case, Mehta knows January 6 as well as anyone — and probably has seen a bunch that is not public.

And the only two takeaways about which he seemed certain are that, first of all, Don Jr’s attempts to get his Pop to call off the riot, on top of the fact that his incendiary speech wasn’t nearly as pointed as his Dad’s, likely puts him in the clear for tortious liability. Whether Trump himself is, Mehta said over and over, is a very difficult question.

He seemed to think the question of whether Trump abetted the riot is easier than whether he conspired with the criminals.

The one other thing about which Mehta seemed certain, based on the record before him (and possibly on stuff he has seen that’s not public) is that a claim that the Oath Keepers and Proud Boys conspired is not at all a stretch. He even noted, at one point, that Jonathon Moseley’s claim that some people who listened to Trump might have listened to his speech and then gone to lunch was not applicable here given that, as he knows well, the Oath Keepers did not go to lunch.

Here’s my thread on the rest, which I’ll presumably return to.

Because this case was for a conspiracy before a judge who knows January 6 as well as anyone, in suits arguing incitement more aggressively than a conspiracy that I think is becoming more evident (but that was not briefed before Mehta), his caution should caution others. These lawsuits are basically a dry run of any criminal charges against the Former, particularly for incitement. And, at least per Judge Mehta, the case is not as clearcut as many seem to believe.

32 replies
  1. Rugger9 says:

    That might be true for the immediate J6 event, but DJTJ was a strident megaphone for various “stop the steal” conspiracies long before the election and J6. So, while DJTJ is apparently in the clear for J6 proper (and the archivist records may dispute that conclusion) he’s not completely off the hook either.

    • PieIsDamnGood says:

      Is Jr. smart enough to conspire?

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. You entered only “Pie” as your username; I’ve corrected it this time to “PieIsDamnGood” which you’ve used 185 previous times. Please stick with the original name. Thanks. /~Rayne]

      • Ok fine says:

        Does it not ever occur to you that this is a really stupid system and literally not a single other website on the planet uses it for accounts? Why waste your time in such a pathetic way to bully people for using a different name when it’s the site fault for such a crummy system?

        [I’m letting this drive-by concern troll’s comment through to make a point: we don’t track users here like other systems do. Go and shop for a comment system, note how much of each user’s data can be harvested by another entity. Determine just how much extra labor and hassle it would take to manage a parallel platform. We use this “really stupid system” (which other WordPress sites must use because it still exists) because every commenter’s data stays here, with us, unused for any purpose except to confirm whether the commenter is new (or a new sock puppet like this concern troll) or a seasoned member of this community.

        Every blog site which allows comments has its foibles. None are perfect. This site asks its community to assume responsibility for their identities when they comment, which for the overwhelming majority of commenters over more than a decade hasn’t been a problem.

        In short, if you don’t like the comment system here, find the door. We’re not going to keep and sell whatever data you’ve left here. /~Rayne]

        • earlofhuntingdon says:

          You seem to have become addicted to the false “convenience” peddled by Silicon Valley, one of its great frauds.

          This site is a paragon for continuing to promote user anonymity. Its users have an opportunity – not seen anywhere else in the Internet – to exchange responsible, full commentary. What’s the price for that? Helping to pay for the pen & ink, being factual and non-abusive, having a tolerance for the occasional potty mouth – and using the same bloody username. To hell with lazy privacy-destroying convenience.

          • Rayne says:

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            The drive-by troll was operating from a known forum spam address, but given an uptick in a certain kind of troll I thought it best to respond.

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              Speaking of donations, what is the method of contribution that costs this site the least? Since I can’t just walk up and give cash in person.

              • emptywheel says:

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                • ducktree says:

                  My continuing monthly contribution here goes through PayPal. Would it be better for EW if I were to use Patreon?

                  Please let me know – I’d hate to think that my monthly pittance to your endeavors here costs you more than it benefits.

        • Chirrut Imwe says:

          Has there ever been consideration for a FAQ on posting protocol? I hunted around but did not see one. It could address this username issue and explain why it is important to use the same one. Might simplify things some on the admin side – having something to point to instead of having to explain over and over.

          Plus it could include tips for paragraph breaks and how to include links and well-formatted snips of other comments (etc). I have not figured out how to do that last one…

          For those who don’t blog or dabble in the socials, EW is not necessarily intuitive. I held off on commenting here for awhile because I thought I needed to register and get a login, and could not figure out how to do that (registering is not necessary to post…).

          Just my 2 cents…

  2. Garrett Everhardt says:

    Excellent points. To all those that are mad that indictments have yet to be handed down, and say it’s “an open and shut case for Garland”, this shows that right now in a courtroom, it isn’t anything remotely close to a slam dunk.

    This is why the investigation continues, and why more evidence is needed.

    • Al Ostello says:

      NOTE: It took 2 long years of careful investigations before dozens of Nixon’s aides were indicted after the Watergate break-in. Many additional months for them to be jailed. ALSO: After the WATERGATE public hearings Nixon’s approvals dropped 15 pts and his party lost the midterms.

      • timbo says:

        Not quite two years. And during that two year period, the VP and former AG were indicted and/or left office under said criminal indictment. That’s how corrupt Nixon’s folks were( or perhaps it demonstrates how much more cleaner 1970s DC was than that of today?)

        • Charles Wolf says:

          For all practical purposes, there were only 3 TV networks and their ratings were in the 10s of millions each. There were zero batshit crazy media with serious influence.
          All 3 major TV networks carried the Watergate hearings live. It was also in all the headlines and lots of radio. There was no escape. There were no alternate realities either. There was no FOX or Q. There was a Fairness Doctrine. There was the costly and embarrassingly failing Vietnam Invasion.
          Congress was not involved in the burglary. There was no insurrection to complicate matters.
          And then came Butterfield and the Nixon Tapes. It was clean alright.

  3. BobCon says:

    Am I correct that the evidence in this case is basically just public evidence of things like parts of speeches, and hasn’t involved any kind of in-depth discovery?

    I’m trying to get my head around how much of the possible ocean of evidence is before Mehta for this case. My sense is it is only a small subset, but if I am wrong can someone please correct me?

    • Hoping4Better_Times says:

      (One thing that is important to note here is that at this stage, the court accepts the allegations in a complaint as true, but isn’t deciding that. In weighing a motion to dismiss, a judge is deciding if plaintiffs adequately pled claims and can proceed to the next stage)

  4. harpie says:

    My favorite tweet in this thread:

    House lawyer is talking about contradictory comments in Brooks’ filing.
    I vaguely remember this my goodness the last year has been interminable.


  5. bg says:

    Well, at least at this juncture, maybe DJTJ looks OK, but there may be other info which has not yet been shared. Like whether he participated in any planning, and more. I’ll wait.

    • eyesoars says:

      That would be the ‘incitement’ vs. ‘conspiracy’ question. As noted, this pleadings today revolve around incitement (only).

  6. segoe says:

    “Mehta: What about claim Trump called a state official in Georgia to ask them to scrutinize election results? Is that entitled to immunity?
    Binnall: Yessir Mehta: On what basis?
    Binnall: President’s constitutional duty to ensure laws faithfully executed
    Mehta: Not state law…”

    What about Trump’s nearly 3 hour inaction after the attack on the capitol? Hadn’t Trump a constitutional duty to ensure the capitol was not breached or the peaceful transfer of power was not obstructed?
    I am not a lawyer, but could future plaintiffs point out to all of these logical flaws in future lawsuits? I mean they (Trump lawyers) are contradicting themselves each time they are in front of a judge…

  7. punaise says:

    David Atkins at WaMo
    puts it succinctly:

    Hence the violent insurrection, impelled by Trump with his characteristic mafioso style of indicating his desires somewhat obliquely, with just enough plausible deniability to avoid landing in prison immediately, to stop the counting the votes and possibly carry out lethal violence to Democratic elected officials and the presidential chain of succession in the vice president and the speaker of the House.

  8. WilliamOckham says:

    I listened to the first part of that hearing. It sounded to me like Mehta was inclined to let the cases move forward at this point. He certainly didn’t seem to be having any of the absolute immunity crap that Binnall was pushing.

    • timbo says:

      That’s good. Sort of. Like when are the federal courts going to start citing attorneys for contempt if they keep pedaling this absolute immunity garbage? Seems to me that we’re seeing more of these dubious claims not less of recent.

  9. George Goldstein says:

    I think the key is for the 1/6 Committee to get everything it has to DOJ ASAP in case democrats lose the House, as DOJ will not change hands until at least 1/2005.

  10. bmaz says:

    “These lawsuits are basically a dry run of any criminal charges against the Former, particularly for incitement. And, at least per Judge Mehta, the case is not as clearcut as many seem to believe.”

    Yep. It has never been clearcut in the least.

  11. Riktol says:

    If the plaintiffs want to change what they are charging the defendants, can they do that or do they have to file a new case? I’m thinking of superseding indictments which have been discussed in criminal cases, but I don’t know if they are available in civil cases.

    • The Old Redneck says:

      With some limits, they are available in civil cases. They’re just called “amended complaint,” “second amended complaint,” and so on. You can bring in new legal theories or claim things based on new evidence.

  12. The Old Redneck says:

    Within some limits, they are available in civil cases. They’re just called “amended complaint,” “second amended complaint,” and so on. You can bring in new legal theories or claim things based on new evidence.

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