The DC Circuit rules that Donald Trump CAN be sued for inciting the Jan. 6 crowd. First hurdle cleared!
Trump hasn’t won this case, by any means, but this ruling says that Trump did not demonstrate that he was entitled to have the case dismissed because of President’s official-act immunity.
Harry Litman calls this a giant step forward toward holding Trump accountable for Jan 6, and a big win for jack Smith and the American people. It will be interesting to see if our BJ attorneys agree. From the decision: (bolding is mine, for those of you who aren’t included to read 4 long paragraphs.)
In arguing that he is entitled to official-act immunity in the cases before us, President Trump does not dispute that he engaged in his alleged actions up to and on January 6 in his capacity as a candidate. But he thinks that does not matter. Rather, in his view, a President’s speech on matters of public concern is invariably an official function, and he was engaged in that function when he spoke at the January 6 rally and in the leadup to that day. We cannot accept that rationale. While Presidents are often exercising official responsibilities when they speak on matters of public concern, that is not always the case. When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.
While we thus reject President Trump’s argument for official-act immunity at this stage, that result is necessarily tied to the need to assume the truth of the plaintiffs’ factual allegations at this point in the proceedings. President Trump has not had a chance to counter those allegations with facts of his own. When these cases move forward in the district court, he must be afforded the opportunity to develop his own facts on the immunity question if he desires to show that he took the actions alleged in the complaints in his official capacity as President rather than in his unofficial capacity as a candidate. At the appropriate time, he can move for summary judgment on his claim of official-act immunity.
Because our decision is not necessarily even the final word on the issue of presidential immunity, we of course express no view on the ultimate merits of the claims against President Trump. Nor do we have any occasion to address his other defenses, including his claim that his alleged actions fall within the protections of the First Amendment because they did not amount to incitement of imminent lawless action: he did not seek appellate review at this time of the district court’s denial of his First Amendment defense, but he could bring that issue before us in the future. We also do not opine on whether executive or other privileges might shield certain evidence from discovery or use as the litigation proceeds. Nor does our decision on a President’s official-act immunity from damages liability in a civil suit treat with whether or when a President might be immune from criminal prosecution.
Instead, we hold only that, taking the allegations in the plaintiffs’ complaints as true as we must at this point in the proceedings, President Trump has not demonstrated an entitlement to dismissal of the claims against him based on a President’s official-act immunity. In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate.
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In related Trump legal news, one of Trump’s lawyers – Jennifer Little – was ordered to testify in the classified documents case this week – if you guessed attorney client privilege pierced because of the crime fraud exception, you win. Something. I’ll spare you her photo, but she looks just like you would expect a female attorney hired by Trump to look. (How did he ever hook up with Sydney Powell as an attorney” Maybe she’s the exception that proves the rule?)
In any case, this one was smart enough to explain the issue to Trump in unmistakable language:
“Once this (affidavit) is signed, if anything else is located, it’s going to be a crime”
Trump’s attorney explained the situation to him like he was a 5 year old.
He acknowledged he understood and nonchalantly did it anyway.
…and here we are.
— Jack E. Smith ⚖️ (@7Veritas4) November 30, 2023
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Dick Durbin Grows a Pair!
“It’s called precedent,” the Senate Judiciary Committee chair said of violating the same rule that Republicans ignored to move forward with judicial nominees.
(Personally, I would have gone with “It’s called precedent, you fuckers!”, but that’s just me.)