Last Updated on May 26, 2021
President Donald Trump has officially filed a response to a lawsuit about the “Stop The Steal” demonstration planned by President Trump and his supporters on January 6, 2021. At the same time, President Trump and Donald Trump Jr. filed a motion to dismiss in a largely redundant and nearly identical lawsuit brought against them by Rep. Eric Swalwell. The Trump family’s motion to dismiss is similar to that filed by Rep. Mo Brooks and Rudy Giulaini last week.
In both lawsuits, the motions to dismiss contest that the Members of Congress lack standing to sue on behalf of Congress. President Trump also argues that everything he did or said was protected under the First Amendment as free speech and the right to petition the government. President Trump’s attorney argues in depth that passionate political speech does not create liability. “In essence, Mr. Swalwell argues that speakers should be vicariously liable for the acts of the listeners. Indeed, he might wonder if he would be liable because of his and his Democratic colleagues’ rhetoric which encouraged left-wing activist James Hodgkinson to shoot Capitol Police Officer Crystal Griner, Congressman Steve Scalise, and others in June 2017,” the filing reads.
President Trump’s attorney argues that there are well-established constitutional standards for incitement, and President Trump’s statements do not qualify as incitement. “Speech only loses its First Amendment protection when there is an incitement to imminent lawless action, rather than mere advocacy,” President Trump’s attorney, Jesse Binnall writes, adding, “Moreover, to hold that Mr. Trump’s statements would make him civilly liable would turn district courts into arbiters of political speech.” Furthermore, Binnall argues that the Plaintiffs’ approach would be a fundamental change to 42 U.S.C. § 1985, the civil rights law in question. Binnall explains that the allegations show at most a conspiracy to petition government officials to act (as they should act), not a conspiracy to commit any violent act.
Congressman Bennie Thompson (D-MD) sued President Trump, Guiliani, the Proud Boys International LLC, and the Oath Keepers for a conspiracy to incite a violent insurrection. The lawsuit mirrors the Democrats’ accusations against conservatives, President Trump, and Trump supporters since January 6. The lawsuit largely contains the same themes as Democrats’ calls for a 9/11 style commission to investigate the mostly-peaceful protests that included a few acts of violence. Both lawsuits appear to be a means for pushing narratives central to the Democrat agenda and re-election campaign for 2022.
Virginia attorney and National File contributor Jonathon Moseley points out: “Curiously, the Plaintiffs only sue in their individual capacities, and sue the Defendants only in their individual capacities. Yet they do not allege any personal injuries, not even apprehension, although Swalwell did in his companion suit. Instead, their complaint is ‘delay of Congress’ – that the demonstrators, all of them everywhere, stopped the Congress from counting Electoral College votes for a few hours. They are quite proud that the Congress did actually complete its meeting, but in legal terms complain that the session was postponed.”
Therefore, the Members of Congress do not have “standing” to sue on behalf of Congress, Moseley concludes. Moseley asserts that “the lawsuit is also self-contradictory, and thus vulnerable to a motion to dismiss.” The Members of Congress simultaneously complain that demonstrators wanted to prevent Congress from meeting but in self-contradiction allege that demonstrators wanted Congress to count the Electoral College votes correctly based on election disputes. Thus, the Plaintiffs argue that demonstrators both tried to stop Congress from meeting but demanded that Congress meet and hear the disputes.
Democrats assume that the purpose of the session was purely mathematical. “There is no reason for the Constitution to require the entire Congress to convene on a date certain merely to do math,” Moseley retorts. “The purpose of the session includes considering and resolving disputes. That’s a serious task that requires Congress to meet. Only adding up votes was not what the Founders intended. Protestors were demanding that Congress do all of its job, not just part of its job.” As a result of self-contradiction, the lawsuit is vulnerable to a motion to dismiss, Moseley explains.
The lawsuit is brought under a single cause of action, the Klu Klux Klan Act of 1871. The extremely long Amended Complaint alleges that the Defendants and mostly unnamed demonstrators conspired to storm the U.S. Capitol to disrupt the Congressional counting of Electoral College votes for President.
“But there is no (Anti) Klu Klux Klan Act of 1871 or any other year,” explains Moseley. “That doesn’t exist. The Democrats as always are trying to racialize issues that have nothing to do with race. The correct name of the law is ‘the Civil Rights Act of 1871.’ The Amended Complaint takes Rudy’s complaint about a history of voter fraud or election fraud in certain cities and then claims that those cities are predominantly African-American. But Rudy never mentioned race.”
The lawsuit was amended to include a total of eleven Democrat members of Congress. National File understands that neither Proud Boys President Enrique Tarrio nor the Proud Boys filed a response because of technical complications suggesting that they have not been properly served. Both the Proud Boys and Oath Keepers appear to be informal groups, and not corporations or the like. The Amended Complaint names only two actual Proud Boys who participated in the demonstrations, but curiously does not actually sue those identifiable people. One wonders why the Members of Congress go to the trouble of naming two individual Proud Boys, but does not sue them as Defendants.
Law enforcement has thus far charged 445 people, and claim they are trying to identify 100 more. However, many of those charges are for refusing to disperse from the blocks around the Capitol after D.C. Mayor Muriel Bowser imposed an emergency curfew. Reportedly, only about five of those arrested have any identifiable connection to any group or organization. None of those arrested were carrying firearms. Some of the 445 people, of course, are charged with much more serious matters, including attacking police, destruction of property, and trespassing.
National File spoke to a lawyer with understanding of the lawsuits, who said, “Trump’s attorney actually does a surprisingly good job of countering Democrat messaging in describing the overall context. However, Binnall claims that Trump is immune from suit for actions while he was President. This may sound to the average voter like Trump is guilty, but exempt. This may work well inside the courtroom, but not for public reputation. Raising this legal issue also will prolong the discussion as the case will go up through appeals.”
The lawyer added, “Trump’s attorney also raised a new argument that Trump surviving impeachment means he is now immune from civil lawsuits about the same issues. None of the Defendants have figured out that the Proud Boys and Oath Keepers and others were widely and strongly anticipating violence from Antifa against the massive crowds of Trump supporters. The statements which Democrats point to involved defensive preparations. These court cases are basically the second impeachment converted into lawsuits. They track and promote the Democrats’ main messaging for defending their majorities in the 2022 elections and for portraying Trump supporters as violent racists.”
