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In Trump Cases DDC Judge Hears Mo Brooks and Eschews Congressional Baseball Shooting

By Matthew Russell Lee, Patreon Maxwell Book
BBC - Guardian UK - Honduras - ESPN

FEDERAL COURT, Jan 10 – There was in the U.S. District Court for the District of Columbia on January 10 an oral argument in three cases against Trump, THOMPSON, SWALWELL & BLASSINGAME before Judge Amit P. Mehta - Inner City Press live tweeted, here:

Trumps' lawyer: The Congressional Democratic plaintiffs are hoping this court will help them score points --

Judge Mehta: Can we just turn to the legal principles, rather than rhetoric? What about Nixon case and immunity? What function was President Trump performing with his various tweets and his speech on January 6?

Trump's lawyer: The test is broader. This has to be content neutral analysis. You can't just look at the words that were spoken.

Judge Mehta: You'd have me ignore what he actually said? Trump's lawyer: Yes. Speaking to the American people is something that Presidents do. Like, fireside chats.

Judge Mehta: Even if it has nothing to do with the duties of the President?

Trump's lawyer: Right.

Judge Mehta: Do you argue that statements made in his capacity as a candidate would fall outside --

Trump's lawyer: Yes, a President could use what he said in State of the Union out on the trail. Judge Mehta: Isn't that contrary to what the Supreme Court has said?

 Judge Mehta: What about the president's call to the state official in Georgia - does he have immunity?

Trump's lawyer: Yes. It is the President's duty to make sure the laws are faithfully executed -  Judge Mehta: Not state laws. Trump's lawyer: I'm getting there.

 Trump's lawyer: In the Fitzgerald case, there are remedies available to members of Congress. They voted for articles of impeachment and they failed. They don't get another bite at the apple. Judge Mehta: If there anything a President could say that could be sued?

 Trump's lawyer: Maybe if a president signed a lease for his campaign office... But if a judge frees a defendant on bond and the defendant runs someone over, you can't have the judge getting sued. It's Pandora's box.

Trump's lawyer: For example, President Obama in a speech spoke about the Citizens United decision, something he does not have authority over. But he has immunity. Or if a president spoke for the Equal Rights Amendment. It must be immunity.

 Judge Mehta: Let's hear from the plaintiffs'. Mr. Sellers. Sellers: The Court has to look at what was said. The President could be promoting treason. [Cites Paula Jones vs Bill Clinton case] What he spoke about was a campaign issue seeking to secure re-election

 Joseph Sellers: Mr. Trump's efforts to secure his re-election, he wanted the counts suspended -- Judge Mehta: Can we take a broader view? There was Congressional action being taken. Doesn't the President have a right to try to influence it?

Sellers: He has no role in counting the ballots. It's the VP. And he has no legitimate role in fomenting an insurrection directed at Congress. Mr. Trump dispatched a crowd and after he saw the break-in, he re-tweeted his remarks

 Sellers: This goes beyond a traffic ticket - Judge Mehta: What about Nixon and Fitzgerald?

Plaintiffs' lawyer Seller: Nixon was within his functions in a personnel action. Here, it's fomenting an insurrection. He did this with third party agents, with the crowd

 Sellers: I wanted to give my colleagues a chance.

Patrick A. Malone for Blassingame plaintiffs: In Fitzgerald, yes President Nixon had that power. But not here. This was personal conduct, as a candidate.

Lawyer for Swalwell: Nixon firing Fitzgerald was clearly within the President's duties. Here's it different, whether he was doing it to try to overturn the election or just for sport. Even Mr. Binnall's [Trump's lawyer] required some inquiry

Giuliani's lawyer Sibley: The conspiracy has to include a huddle. But they have a plausibility problem. You can't construe the statements as an invitation to a conspiracy to go to the Capitol and commit crimes. Judge Mehta: Why not? They chanted, Let's storm it

Sibley is called Judge Mehta "his Honor," not "Your Honor." He says, Let's assume January 6 didn't happen, as to the violence. Would President Trump's speech be actionable? No. Whereas if I yell fire in a crowded theater and no one runs, it's still a crime

 Judge Mehta: President Trump didn't do anything as it got out of hand. Sibley: If I give a speech that inspires people to have hatred against a particular group but I don't call for violence, you can't look at the result. You have to look at the speech.

Judge Mehta: Let's stick to the facts. An invitation to engage in tortious conduct and an acceptance of that invitation is sufficient for conspiracy... Let's bring this to a close. I don't think either party is being alleged to have acted in any particularly way

 Judge Mehta: I'm just trying to apply to law to the facts here.  Defense: These plaintiffs don't have standing - Congress members are not officers of the US. And Capitol Police Officers, while important, are not either.  Judge Mehta: It's not limited to that

 Judge Mehta: Let's take a break. Judge Mehta: Let me ask about Mr. Giuliani and Mr. Trump, Junior. I'm trying to distinguish between two conspiracy: one to forment distrust in the election, which doesn't violate the law. The other, to prevent by force the activities of Mr. Swalwell.

 Plaintiffs' lawyer: Mr. Trump Junior, his words cannot be taken in isolation.  Judge Mehta: But there's no call to arms. So how do you get there, with the President's son?

 Judge Mehta: What about Mr Giuliani calling members of Congress during the riot and telling them to take advantage of it? Wouldn't that get it past the motion to dismiss stage? Defense: He was just implementing the Professor Eastman plan, to delay...

 Judge Mehta: The Supreme Court in Evers said the speech couldn't be linked to the violence between the latter happen much after. Here, it didn't.  Defense: The words President Trump used doesn't rise to any level of violence. Defense: What about the Congressional baseball shooting?

Judge Mehta: I only want to talk about this case. Defense: You can't make these decisions in a vacuum. Members of Congress use language like this. The First Amendment only works when it is applied equally.

 Judge Mehta: To suggest that I treat people different based on their party is inappropriate and I ask you to avoid that. I hope I have demonstrated that in this hearing. Let's stick to what matters. Defense: None of what I've said is an indictment of the Court

Now Congressman Brooks, speaking for himself, proposes to read a statement. Judge Mehta: It's too late in the afternoon for that. Brooks: It's different, and less than the 10 minutes allotted to me. I acted in the scope of my employment

 Brooks: Every speech I gave was within the scope of my employment. Plaintiffs allege that opposing certification of electoral college submissions can be subject to lawsuit. Democrats do it too, including -- Judge Mehta: I am not questioning your votes that day

 Judge Mehta: Do you accept that the DOJ distinction between electioneer and your employment as a Congressmember?  Brooks: I did not violate any House rule of ethics on January 6. The House Ethics Committee agreed with me.

Brooks: Your Honor, I'd be happy to get you a copy of the House Ethics Committee complaint and decision. Judge Mehta: Please do. We'll make sure it gets into the docket.

Now DOJ lawyer: we believe Rep. Brooks was outside the scope of his employment on January 6.

 Argument continues past 5 pm: "Congressman Brooks is asking to have the United States substituted for him. It is absurd. This Court must have deference to the House- Judge Mehta: Even on the facts? Is this letter only from the Chairwoman?

     Brooks: This was not a campaign event. The campaign was over. This was a legal proceeding. No ethics laws were violated and the Ethics Committee agreed.  Judge Mehta: Let's take another break.

Judge Mehta: Just because a statute has been violated doesn't mean you have a right of action. I will get to a ruling on this. Thanks for your time this afternoon. Adjourned


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