*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________
) BENNIE G. THOMPSON et al., )
) Plaintiffs, )
) v. ) Case No. 21-cv-00400 (APM) )
DONALD J. TRUMP et al., )
) Dеfendants. ) _________________________________________ )
_________________________________________
) ERIC SWALWELL, )
) Plaintiff, )
) v. ) Case No. 21-cv-00586 (APM) )
DONALD J. TRUMP et al., )
) Defendants. ) _________________________________________ )
_________________________________________
) JAMES BLASSINGAME & )
SIDNEY HEMBY, )
) Plaintiffs, )
) v. ) Case No. 21-cv-00858 (APM) )
DONALD J. TRUMP, )
) Defendant. ) _________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
January 6, 2021 was supposed to mark the peaceful transition of power. It had been that way for over two centuries, one presidential administration handing off peacefully to the next. President Ronald Reagan in his first inaugural address described “the orderly transfer of authority” as “nothing less than a miracle.” [1] Violence and disruption happened in other countries, but not here. This is the United States of America, and it could never happen to our democracy.
But it did that very afternoon. At around 1:30 p.m., thousands of supporters of President Donald J. Trump descended on the U.S. Capitol building, where Congress had convened a Joint Session for the Certification of the Electoral College vote. The crowd had just been at the Ellipse attending a “Save America” rally, where President Trump spoke. At the end of his remarks, he told rally-goers, “we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” The President then directed the thousands gathered to march to the Capitol—an idea he had come up with himself. About 45 minutes after they arrived, hundreds of the President’s supporters forced their way into the Capitol building. Many overcame resistance by violently assaulting United States Capitol Police (“Capitol Police”) with their fists and with weapons. Others simply walked in as if invited guests. As Capitol Police valiantly fought back and diverted rioters, members of Congress adjourned the Joint Session and scrambled to safety. *3 So, too, did the Vice President of the United States, who was there that day in his capacity as President of the Senate to preside over the Certification. Five people would die, dozens of police officers suffered physical and emotional injuries and abuse, and considerable damage was done to the Capitol building. But, in the end, after law enforcement succeeded in clearing rioters from the building, Congress convened again that evening and certified the next President and Vice President of the United States. The first ever presidential transfer of power marred by violence was over.
These cases concern who, if anyone, should be held civilly liable for the events of January 6th. The plaintiffs in these cases are eleven members of the House of Representatives in their personal capacities and two Capitol Police officers, James Blassingame and Sidney Hemby (“ Blassingame Plaintiffs”). Taken together, they have named as defendants: President Trump; the President’s son, Donald J. Trump Jr.; the President’s counsel, Rudolph W. Giuliani; Representative Mo Brooks; and various organized militia groups—the Proud Boys, Oath Keepers, and Warboys— as well as the leader of the Proud Boys, Enrique Tarrio.
Plaintiffs’ common and primary claim is that Defendants violated 42 U.S.C. § 1985(1), a provision of a Reconstruction-Era statute known as the Ku Klux Klan Act of 1871. The Act was aimed at eliminating extralegal violence committed by white supremacist and vigilante groups like the Ku Klux Klan and protecting the civil rights of freedmen and freedwomen secured by the Fourteenth Amendment. Section 1985(1) is not, however, strictly speaking a civil rights provision; rather, it safeguards federal officials and employees against conspiratorial acts directed at preventing them from performing their duties. It provides:
If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or *4 to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties.
42 U.S.C. § 1985(1). The statute, in short, proscribes conspiracies that, by means of force, intimidation, or threats, prevent federal officers from discharging their duties or accepting or holding office. A party injured by such a conspiracy can sue any coconspirator to recover damages. Id. § 1985(3).
Plaintiffs all contend that they are victims of a conspiraсy prohibited by § 1985(1). They claim that, before and on January 6th, Defendants conspired to prevent members of Congress, by force, intimidation, and threats, from discharging their duties in connection with the Certification of the Electoral College and to prevent President-elect Joseph R. Biden and Vice President–elect Kamala D. Harris from accepting or holding their offices. More specifically, they allege that, before January 6th, President Trump and his allies purposely sowed seeds of doubt about the validity of the presidential election and promoted or condoned acts of violence by the President’s followers, all as part of a scheme to overturn the November 2020 presidential election. Those efforts culminated on January 6th, when the President’s supporters, including organized militia groups and others, attacked the Capitol building while Congress was in a Joint Session to certify the Electoral College votes. Notably, Plaintiffs allege that President Trump’s January 6 Rally Speech incited his supporters to commit imminent acts of violence and lawlessness at the Capitol. Plaintiffs all claim that they were physically or emotionally injured, or both, by the acts of the conspirators.
Plaintiffs advance other claims, as well. Swalwell alleges a violation of § 1986, a companion provision to § 1985. 42 U.S.C. § 1986. That statute makes a person in a position of power who knows about a conspiracy prohibited by § 1985, and who neglects or refuses to take *5 steps to prevent such conspiracy, liable to a person injured by the conspiracy. Swalwell claims that President Trump, Trump Jr., Giuliani, and Brooks violated § 1986 by refusing to act to prevent the violence at the Capitol. Swalwell and the Blassingame Plaintiffs also advance numerous common law torts and statutory violations under District of Columbia law.
All Defendants have appeared except the Proud Boys and Warboys. Defendants have moved to dismiss all claims against them. They advance a host of arguments that, in the main, seek dismissal for lack of subject matter jurisdiction or for failure to state a claim. The parties have submitted extensive briefing on a range of constitutional, statutory, and common law issues. The court held a five-hour-long oral argument to consider them.
After a full deliberation over the parties’ positions and the record, the court rules as follows: (1) President Trump’s motion to dismiss is denied as to Plaintiffs’ § 1985(1) claim and certain District of Columbia–law claims and granted as to Swalwell’s § 1986 claim and certain District of Columbia–law claims; (2) Trump Jr.’s motion to dismiss is granted; (3) Giuliani’s motion to dismiss is granted; (4) the Oath Keepers’ motion to dismiss is denied; and (5) Tarrio’s motion to dismiss is denied. Separately, Brooks has moved to substitute the United States as the proper party under the Westfall Act. The court declines to rule on that motion and instead invites Brooks to file a motion to dismiss, which the court will grant for the same reasons it has granted Trump Jr.’s and Giuliani’s motions.
II. BACKGROUND
A. Facts Alleged
This summary of the alleged facts is drawn from the complaints in all three cases. There is substantial overlap, but there are some differences. The court has not referenced every fact alleged across the three complaints; this factual recitation is meant to summarize the main *6 allegations. Additionally, a citation to one complaint should not be understood to mean that the allegation is not present in the other complaints. The court has limited the citations in the interest of efficiency. Additional facts will be referenced as appropriate in the Discussion section.
As is required on a motion to dismiss, the court assumes these facts to be “true (even if
doubtful in fact).”
Bell Atlantic Corp. v. Twombly
,
1. The Weeks Following the Election
a. False claims of election fraud and theft President Trump began to sow seeds of doubt about the validity of the November 2020 presidential election in the weeks leading up to Election Day. Am. Compl., Blassingame v. Trump , No. 21-cv-00858 (APM) (D.D.C.), ECF No. 3 [hereinafter Blassingame Compl.], ¶ 13. He claimed, among other things, that there would be “fraud,” the election was “rigged,” and his adversaries were “trying to steal” victory from him. Id. ¶¶ 13, 16; Compl., Swalwell v. Trump , No. 21-cv-00586 (APM) (D.D.C.), ECF No. 1 [hereinafter Swalwell Compl.]; Mot. for Leave to File Am. Compl., ECF No. 11, Am. Compl., ECF No. 11-1, [hereinafter, Thompson Compl.], ¶ 33. [2]
On election night, the President claimed victory before all the votes were counted. He tweeted that “they are trying to STEAL the Election. We will never let them do it.” Blassingame Compl. ¶ 17. He also would say in a primetime television address the next day, “If you count the legаl votes, I easily win. If you count the illegal votes, they can try to steal the election from us.” Swalwell Compl. ¶ 33.
The President’s allies joined him in making similar claims. For example, on November 5, 2020, Brooks tweeted that he “lack[ed] faith that this was an honest election.” Id. ¶ 78. On November 6, 2021, Trump Jr. tweeted that his father’s campaign was uncovering evidence of voter fraud and that the media was creating a false narrative that voter fraud was not real. Id. ¶ 69. On November 7, 2020, one of President Trump’s lawyers, Rudolph Giuliani, held a press conference in suburban Philadelphia, during which he asserted that there was rampant voter fraud in Philadelphia and Pittsburgh, which accounted for the President’s loss in Pennsylvania. Thompson Compl. ¶ 38.
b. Efforts to influence state and local election officials
The President also took his case directly to state and local election officials. These meetings occurred by phone and in person, and centered mostly on Georgia, Michigan, and Pennsylvania. Swalwell Compl. ¶¶ 39, 45, 49, 52. In some instances, these efforts were followed by threatening words and conduct by some supporters.
In Georgia, for example, the President called Georgia’s Secretary of State an “enemy of the people” and tweeted about him over a dozen times. Swalwell Compl . ¶ 49. The Secretary and his family were then targeted by some of the President’s supporters with threats of violence and death. Id. ¶ 50. Another Georgia state official pleaded with the President to condemn death threats made to election workers in Georgia, but he refused to do so. Blassingame Compl. ¶ 29 .
In another instance, in Michigan, on December 5, 2020, the President falsely declared that he had won almost every county in the state. Swalwell Compl . ¶ 40. The next day armed protesters went to the home of Michigan’s Secretary of State, demanding she overturn the election results. Thompson Compl. ¶ 50. During these weeks, the President also tweeted criticism of Republican *8 governors in Arizona and Georgia, claiming that “[i]f they were with us, we would have already won both.” Swalwell Compl. ¶ 36.
During these efforts, and aware of the threats directed against state election officials, the President tweeted, “People are upset, and they have a right to be.” Thompson Compl. ¶ 52.
The President’s allies, including Brooks and Giuliani, continued to support the President’s campaign to undo the election results. Brooks, for example, tweeted false claims that President- elect Joe Biden had not won Georgia, and he also announced that he would object to certifying the Electoral College ballots from Georgia. Swalwell Compl . ¶ 82. Giuliani also continued his efforts, falsely suggesting in mid-November that irregularities in Detroit were the reason for the President’s loss. Thompson Compl. ¶ 42. He asked then–Deputy Secretary of Homeland Security Ken Cuccinelli to seize voting machines. Swalwell Compl. ¶ 62. A Trump campaign attorney even suggested that an election official should be shot. Thompson Compl. ¶ 48.
c. “Stop the Steal” rallies Dozens of protests sprung up around the country. Blassingame Compl. ¶ 22. Two in Washington, D.C., turned violent. On the evening of November 14, 2020, multiple police officers were injured and nearly two dozen arrests were made. Id. ¶ 26. Then, on December 12, 2020, supporters of the President clashed with District of Columbia police, injuring eight of them, which led to over 30 arrests, many for acts of assault. Id. ¶ 28. The President was aware of these rallies, as he tweeted about them, and he would have known about the violence that accompanied them. Id. ¶¶ 25, 27.
Organized militia groups attended these events in Washington, D.C. One of them was the Proud Boys. During a pre-election debate, the moderator asked whether President Trump would denounce white supremacist groups. When the President asked, “[W]ho would you like me to *9 condemn?,” Vice President Biden suggested the “Proud Boys,” to which the President responded, “Proud Boys, stand back, and stand by.” Thompson Compl. ¶ 30. Tarrio, the head of the Proud Boys, tweeted in response, “Standing by sir.” Id.
Another militia group that came to Washington, D.C., for these rallies was the Oath Keepers. At the December rally, an Oath Keepers leader told the assembled crowd, the President “needs to know from you that you are with him, [and] that if he does not do it while he is commander in chief, we’re going to have to do it ourselves later, in a much more desperate, much more bloody war.” Id. ¶ 54.
2. Preparations for the January 6 Rally On December 19, 2020, President Trump announced that there would be a rally in Washington, D.C., on January 6th, the day of the Certification of the Electoral College: “Big protest in D.C. on January 6th. Be there, will be wild!” Swalwell Compl. ¶ 86. The President and his campaign were involved in planning and funding the rally. He participated in selecting the speaker lineup and music, and his campaign made direct payments of $3.5 million to rally organizers. Thompson Compl. ¶¶ 68–69. Significantly, the rally was not permitted for a march from the Ellipse. Id. ¶ 90. The President and his campaign came up with the idea for a march to the Capitol. Id. ¶ 69.
Pro-Trump message boards and social media lit up after the President’s tweet announcing the January 6 Rally. Some followers viewed the President’s tweet as “marching orders.” One user posted, referring to the President’s debate statement to the Proud Boys, “standing by no longer.” Swalwell Compl. ¶ 88; Thompson Compl. ¶ 57. Other supporters explicitly contemplated “[s]torm[ing] the [Capitol],” and some posted about “Operation Occupy the Capitol” or tweeted using the hashtag #OccupyCapitols. Swalwell Compl. ¶ 89; Thompson Compl. ¶ 62.
The President knew that his supporters had posted such messages. He and “his advisors actively monitored the websites where his followers made these posts.” Thompson Compl. ¶ 66. News outlets, including Fox News, discussed them, as well. Id. On December 28, 2020, in widely publicized remarks, a former White House aide predicted, “there will be violence on January 6th because the president himself encourages it.” Id.
Trump’s allies also worked to promote the January 6 Rally. Trump Jr. posted a video on Instagram asking his followers to “Be Brave. Do Something.” Swalwell Compl. ¶ 74. Giuliani tweeted a video purporting to explain how Vice President Mike Pence could block the certification of the election results. Id. ¶ 65. Brooks posted on social media on the eve of the rally that the President “asked [him] personally to speak & tell the American people about the election system weaknesses that the Socialist Democrats exploited to steal this election.” Id. ¶ 84.
At the same time, members of the Proud Boys and the Oath Keepers began their preparations for the rally in earnest. On December 19 and 25, 2020, leaders of the Oath Keepers announced that they had “organized an alliance” and “orchestrated a plan” with the Proud Boys. Thompson Compl. ¶ 63. Tarrio said that the Proud Boys would turn out in “record numbers.” Id. ¶ 64. The groups also secured tactical and communications equipment. Id. ¶ 65. The Oath Keepers recruited additional members and prepared them with military-style training. Id. ¶ 127.
3. January 6th—The Riot at the Capitol Building The “Save America” rally on the Ellipse began at about 7:00 a.m. Blassingame Compl. ¶ 58. Brooks took the stage around 8:50 a.m. Swalwell Compl. ¶ 84. The Congressman said, among other things, that “[w]e are great because our ancestors sacrificed their blood, their sweat, their tears, their fortunes, and sometimes their lives,” and that “[t]oday is the day American patriots start taking down names and kicking ass!” Id. ¶¶ 106, 108. After Brooks finished, Giuliani spoke. *11 He repeated that the “election was stolen” and said that it “has to be vindicated to save our country.” Id. ¶ 113. Then, in the context of discussing how disputes over election fraud might be resolved, he proclaimed, “Let’s have trial by combat!” Id. ¶ 114. Trump Jr. gave the last speech before the President took to the podium. He spent much of his remarks claiming that the Republican Party belongs to Donald Trump. He also warned Republican members of Congress, “If you’re gonna be the zero, and not the hero, we’re coming for you, and we’re gonna have a good time doing it.” Id. ¶¶ 117–119.
At about noon, President Trump took the stage. Id. ¶ 121. The court will discuss the President’s speech in much greater detail later in this opinion, so recites only portions here. The President spoke for 75 minutes, and during that time, he pressed the false narrative of a stolen election. He suggested that Vice President Pence could return Electoral College ballots to the states, allowing them to recertify Electors, which would bring about an election victory. He urged rally-goers to “fight like hell,” and he told them that “you’re allowed to go by very different rules” when fraud occurs. Swalwell Compl. ¶¶ 126, 128. Early in the speech he referenced a march to the Capitol and said he knew the crowd would be going there to “peacefully and patriotically” make their voices heard. An hour later, he punctuated his speech by saying that the election loss “can’t have happened and we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” Thompson Compl. ¶ 88. He then directed his supporters to the Capitol. The crowd at various points responded, “Fight Like Hell. Fight for Trump,” and at other points, “Storm the Capitol,” “Invade the Capitol Building,” and “Tаke the Capitol right now.” Blassingame Compl. ¶ 61; Thompson Compl. ¶ 88. [3] Responding to the President’s call, thousands marched to the Capitol building after he finished his remarks.
Meanwhile, Congress had convened a Joint Session at 1:00 p.m. to certify the Electoral College vote. Thompson Compl. ¶ 93. Outside the building, some supporters already had begun confrontations with Capitol Police. Even before the President’s speech had concluded, the Proud Boys, operating in small groups, had begun to breach the outer perimeter of the Capitol. Blassingame Compl. ¶ 66; Thompson Compl. ¶¶ 98–100. The Ellipse crowd began to arrive by 1:30 p.m. Blassingame Compl. ¶ 69. As their numbers grew, the crowd overwhelmed police and exterior barriers and entered the Capitol by 2:12 p.m. Swalwell Compl. ¶ 134. The Oath Keepers were among the crowd. Thompson Compl. ¶ 126. The Joint Session was suspended, and the Vice President and members of Congress were evacuated. Id. ¶ 111; Swalwell Compl. ¶¶ 135–136. Police officers, including the Blassingame Plaintiffs, were injured as violent confrontations continued with the President’s supporters.
4. The President’s Response After his speech, the President returned to the White House and watched the events at the Capitol unfold on television. Thompson Compl. ¶ 106. Despite pleas from advisors and Congressmen, the President did not immediately call on his supporters to leave the Capitol building. Blassingame Compl. ¶¶ 114, 116; Thompson Compl. ¶ 123. At about 2:24 p.m., after rioters had entered the Capitol, he sent a tweet critical of the Vice President for lacking “the courage to do what should have been done to protect our Country and our Constitution.” Blassingame Compl. ¶ 116. Eventually, two hours later, the President would tell his supporters to stand down. He tweeted a video calling on them to “[g]o home. We love you. You’re very special.” Id. ¶ 125.
The President sent one more tweet that day. After police had cleared the Capitol, around 6:00 p.m., the President said: “These are the things and events that happen when a sacred landslide *13 election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. . . . Remember this day forever!” Id. ¶ 127.
The House of Representatives would later pass a single Article of Impeachment accusing President Trump of “Inciting an Insurrection,” but the Senate would acquit him after he left office.
B. Procedural History
1. Thompson v. Trump The Thompson case was the first to come before the court on February 16, 2021. See Compl., ECF No. 1. The plaintiffs in that case are ten members of the House of Representatives. [4] Although the case is captioned Thompson v. Trump , the court will refer to these plaintiffs as the “Bass Plaintiffs”—after the second named plaintiff, Representative Karen R. Bass—because the lead plaintiff, Representative Bennie G. Thompson, voluntarily dismissed his claims after his appointment to serve as the chair of the Select Committee to Investigate the January 6th Attack on the United States Capitol. See Notice of Voluntary Dismissal, ECF No. 39. Although all are elected officials, the Bass Plaintiffs have filed suit in their personal capacities. See Thompson Compl.
The Bass Plaintiffs have named six defendants: President Trump, Giuliani, the Oath Keepers, Proud Boys International, Warboys LLC, and Tarrio. Id. They assert a single claim against all Defendants: a violation of 42 U.S.C. § 1985(1). Id. at 60. All Defendants except the Proud Boys and Warboys have appeared and moved to dismiss the claim against them. See Def. Oath Keepers’ Mot. to Dismiss, ECF No. 20 [hereinafter Thompson Oath Keepers’ Mot.]; Def. Giuliani’s Mot. to Dismiss, ECF No. 21, Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, ECF No. 21-1 [hereinafter Thompson Giuliani Mot.]; Def. Trump’s Mot. to Dismiss, ECF No. 22, Mem. *14 in Supp. of Def. Trump’s Mot. to Dismiss, ECF No. 22-1 [hereinafter Thompson Trump Mot.]; Def. Tarrio’s Notice of Intention to Join Mots. to Dismiss, ECF No. 64.
2. Swalwell v. Trump Representative Eric Swalwell filed his action on March 5, 2021, also in his personal capacity. Swalwell Compl. He named as defendants President Trump, Trump Jr., Brooks, and Giuliani. His Complaint advances a host of federal and District of Columbia–law claims against all Defendants: (1) violation of § 1985(1) (Count 1); (2) violation of 42 U.S.C. § 1986 (Count 2); (3) two counts of negligence per se predicated on violations of District of Columbia anti-rioting and disorderly conduct criminal statutes (Counts 3 and 4); (4) violation of the District of Columbia anti-bias statute, D.C. Code § 22-3701 et seq. (Count 5); (5) intentional infliction of emotional distress (Count 6); (6) negligent infliction of emotional distress (Count 7); (7) aiding and abetting common law assault (Count 8); and (8) negligence (Count 9). Id. at 45–62.
Each Defendant except Brooks has moved to dismiss all claims against him. See Def. Giuliani’s Mot. to Dismiss, ECF No. 13, Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, ECF No. 13-1 [hereinafter Swalwell Giuliani Mot.]; Defs. Trump & Trump Jr.’s Mot. to Dismiss, ECF No. 14, Mem. in Supp. of Trump & Trump Jr.’s Mot. to Dismiss, ECF No. 14-1 [hereinafter Swalwell Trump Mot.].
Brooks has moved for a scope-of-office certification under the Westfall Act, 28 U.S.C. § 2679. See Pet. to Certify Def. Mo Brooks Was Acting Within Scope of His Office or Employment, ECF No. 20. Under the Westfall Act, if the Attоrney General certifies that a tort claim against an employee of government—including a member of Congress—arises from conduct performed while “acting within the scope of his office or employment,” the United States is to be substituted as the defendant. 28 U.S.C. § 2679(d)(1). Brooks asked the Attorney General for a *15 Westfall Act certification, but he declined the request. See U.S. Resp. to Def. Mo Brooks’s Petition to Certify He Was Acting Within Scope of His Office or Employment, ECF No. 33 [hereinafter U.S. Resp. to Brooks]. Notwithstanding the Attorney General’s denial, the Westfall Act authorizes a court to make the requisite certification. See 28 U.S.C. § 2679(d)(3) (“In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment.”). Brooks seeks such relief from the court.
3. Blassingame v. Trump The third action is brought by James Blassingame and Sidney Hemby, two Capitol Police officers who were on duty and injured on January 6th. They name only President Trump as a defendant. Blassingame Compl. They advance numerous federal and District of Columbia–law claims: (1) directing assault and battery (Count 1); (2) aiding and abetting assault and battery (Count 2); (3) directing intentional infliction of emotional distress (Count 3); (4) two counts of negligence per se predicated on violations of District of Columbia anti-rioting and disorderly conduct criminal statutes (Counts 4 and 5); (5) punitive damages (Count 6); (6) violation of § 1985(1) (Count 7); and (7) civil conspiracy in violation of common law (Count 8). See id. at 36–48.
Defendant Trump has moved to dismiss all counts against him. Def. Trump’s Mot. to Dismiss, ECF No. 10, Def.’s Mem. in Supp. of His Mot. to Dismiss, ECF No. 10-1 [hereinafter Blassingame Trump Mot.].
4. The Motions to Dismiss Defendants’ arguments for dismissal are the same across all three cases. Generally, all Defendants contend the following: (1) Plaintiffs lack standing to sue under Article III of the *16 Constitution; (2) the First Amendment bars Plaintiffs’ claims; and (3) Plaintiffs have failed to state claims under § 1985(1) and District of Columbia law. President Trump advances a number of contentions that are specific to him: (1) he is absolutely immune from suit; (2) the political question doctrine renders these cases nonjusticiable; (3) the Impeachment Judgment Clause bars civil suits against a government official, like him, acquitted following impeachment; and (4) the doctrines of res judicata and collateral estoppel premised on his acquittal by the Senate preclude all of Plaintiffs’ claims.
The court held oral argument on January 10, 2022, on Defendants’ motions. See Hr’g Tr., ECF No. 63.
III. DISCUSSION
This section consists of two subparts: a discussion of (1) whether the court has subject matter jurisdiction to hear these actions, and if it does, (2) whether Plaintiffs have stated cognizable claims. The court begins, where it must, with determining whether it has jurisdiction to hear these matters.
A. Subject Matter Jurisdiction
Defendants’ challenge to the court’s subject matter jurisdiction requires the court to make four inquiries: (1) whether Plaintiffs have Article III standing to sue, (2) whether President Trump enjoys absolute immunity from suit, (3) whether the cases present a political question that is nonjusticiable as to President Trump, and (4) whether the claims against President Trump are barred by the Impeachment Judgment Clause. [5] The court also addresses in this portion of the *17 opinion President Trump’s res judicata and collateral estoppel defenses, which, although not jurisdictional in nature, logically fit here because they are premised on his acquittal following impeachment.
The court holds that (1) all Plaintiffs have plausibly established Article III standing, (2) President Trump is not absolutely immune from suit, except as to Swalwell’s § 1986 failure- to-act claim (Count 2), (3) the political question doctrine does not bar the court’s review, (4) the Impeachment Judgment Clause does not foreclose the claims against President Trump, and (5) the doctrines of res judicata and collateral estoppel do not preclude litigation of the case or any claim or fact against President Trump. The court takes up these issues in the order listed.
1. Article III Standing The Article III standing arguments made by Defendants are of two varieties. First, President Trump maintains that Swalwell and the Bass Plaintiffs “have not alleged a particularized injury causally connected to Mr. Trump.” Thompson Trump Mot. at 15; Swalwell Trump Mot. at 16–17 (arguing that Swalwell “failed to allege any concrete injury caused by Defendants”). Second, the Oath Keepers contend that the Bass Plaintiffs lack standing to sue in their personal capacities to redress the alleged interference with their official duty to attend and participate in the Certification of the Electoral College vote. Thompson Oath Keepers’ Mot. at 17. Neither contention has merit.
Control Components, Inc.
,
a.
The elements of standing
A plaintiff in federal court bears the burden of showing that she meets the “irreducible
constitutional minimum” of Article III standing: (1) injury in fact, (2) causation, and
(3) redressability.
Lujan v. Defs. of Wildlife
,
The primary question the court faces concerns “injury in fact, the first and foremost of
standing’s three elements.”
Spokeo, Inc. v. Robins
,
The more challenging question surrounding injury in fact relates to Swalwell in his
individual case. He does not allege any physical injury, only emotional harm.
Swalwell
Compl.
¶¶ 149, 223 (claiming “severe emotional distress”). For his common law claims, such harm is
sufficient to establish an injury in fact.
See, e.g.
,
TransUnion LLC
, 141 S. Ct. at 2211 n.7
(acknowledging that emotional or psychological injury suffices for the tort of intentional infliction
of emotional distress). But not automatically so for his claims under § 1985(1) and § 1986 of the
Ku Klux Klan Act.
See Davis v. Fed. Election Comm’n
,
injuries concrete
de facto
injuries that were previously inadequate in law[.]’”
Magruder v. Capital
One, Nat’l Ass’n
,
The parties have devoted scant attention to these questions. The court has considered them,
however, and concludes that emotional harm is sufficiently concrete to establish Article III
standing for claims asserted under § 1985(1) and § 1986. Starting with history, the alleged
intangible harm here—emotional distress—has long been accepted as a basis for certain types of
suits in American courts. “Emotional harm has long-standing recognition as a compensable injury
as a parasitic harm to personal injury or property damage claims, usually referred to as a claim for
pain and suffering.” Betsy J. Grey,
The Future of Emotional Harm
, 83 F ORDHAM L. R EV . 2605,
2610 (2015). Additionally, “[c]ommon law . . . traditionаlly recognized emotional harm claims as
a component of trespassory torts like assault, false imprisonment, and defamation, allowing a
presumption of damages without a showing of related physical injury.”
Id.
This common law
tradition dovetails with the plain text of § 1985(1) and Congress’s reasons for enacting it. The
statute creates a cause of action for a person “injured in his person or property” due to a proscribed
conspiracy. 42 U.S.C. § 1985(3). The statute makes no distinction between physical and
emotional injury, and in that sense it aligns with the common law tradition of permitting recovery
for emotional distress for certain torts without a showing of physical injury. And, though the
statute “was enacted by a Congress acutely aware of the massive and frequently violent resistance
in the southern states to federal Reconstruction after the Civil War,”
Stern v. U.S. Gypsum, Inc.
,
This conclusion is buttressed, at least implicitly, by two D.C. Circuit decisions. In both
Barr v. Clinton
,
President Trump also contests whether Swalwell and the Bass Plaintiffs have plausibly
demonstrated the second element of standing—causation. He contends that their claimed injuries
were caused not by his challenged actions, but by “the independent and intervening acts of third-
party rioters.”
Swalwell
Trump Mot. at 16. He also contends that causation is lacking because
“Plaintiffs did not properly allege a conspiracy.”
Thompson
Trump Mot. at 15. But these
arguments misconstrue the standing inquiry. In “reviewing the standing question, the court must
be careful not to decide the questions on the merits for or against the plaintiff, and must therefore
assume that on the merits the plaintiffs would be successful in their claims.”
City of Waukesha v.
EPA
,
Finally, Plaintiffs’ injuries are redressable with money damages. The court therefore is satisfied that Plaintiffs have sufficiently alleged the requisite elements of standing. [7]
b.
Legislator standing
The Oath Keepers take a different tack on standing. They assert that the Bass Plaintiffs’
injuries are
institutional
in nature—that is, they derive exclusively from their positions as members
of the House. The Oath Keepers contend that if their injuries are so understood, the Bass Plaintiffs,
as individual members, lack standing to vindicate an institutional injury. Oath Keepers Mot. at
17–26. The court might agree with this line of argument if the Bass Plaintiffs were claiming no
more than that the riot interfered with their abilities to carry out their legislative duties. But that
is not what they allege. They do not advance an institutional injury, such as the “dilut[ion] [of]
their Article I voting power.”
Raines v. Byrd
,
2. Presidential Immunity The court turns next to the question of presidential immunity. President Trump contends that under the Supreme Court’s decision in Nixon v. Fitzgerald , 457 U.S. 731 (1982), hе is absolutely immune from damages liability in all three cases because his alleged conduct fell within the “outer perimeter” of his official presidential responsibilities. See Swalwell Trump Mot. at 8–11; Thompson Trump Mot. at 8–11; Blassingame Trump Mot. at 7–13. This is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few. After careful consideration, the court concludes that, on the facts alleged, absolute immunity does not shield President Trump from suit, except as to Swalwell’s § 1986 failure-to-act claim.
a.
The scope of a President’s absolute immunity against damages
liability
The court’s discussion naturally begins with the Supreme Court’s decision in
Nixon v.
Fitzgerald
. In that case, a former federal employee sued President Richard Nixon and various
Executive Branch officials for damages arising from his termination from employment.
Fitzgerald
,
The Court held that President Nixon enjoyed absolute immunity from the plaintiff’s suit: “[W]e hold that petitioner, as former President of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.” Id. at 749. The Court continued: “We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers.” Id. Central to the Court’s determination was the “unique position in the constitutional scheme” that the President occupies. Id. The Court observed that, “as the chief constitutional officer of the Executive Branch,” the President is “entrusted with supervisory and policy responsibilities of the utmost discretion and sensitivity.” Id. at 750. Those responsibilities include taking care that the laws be faithfully executed; conducting foreign affairs; and managing the Executive Branch. Id. ; see also Trump v. Vance , 140 S. Ct. 2412, 2425 (2020) (describing the President’s “duties, which range from faithfully executing the laws to commanding the Armed Forces,” as “of unrivaled gravity and breadth”). Though the Court had previously held that qualified immunity struck the proper separation-of-powers balance for cabinet officers, the Court said that “[t]he President’s unique status under the Constitution distinguishes him from other executive officials.” Fitzgerald , 457 U.S. at 750. For a President, “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” Id. at 751. Indeed, because the *25 President must concern himself with “matters likely to ‘arouse the most intense feelings,’” “there exists the greatest public interest in providing an official the maximum ability to deal fearlessly and impartially with the duties of his office.” Id. at 752 (internal quotation marks omitted). The Court also weighed the “sheer prominence” of the President’s office, which makes him “an easily identifiable target for suits for civil damages.” Id. at 752–53. “Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.” Id.
The Court then defined the scope of a President’s absolute immunity. It observed that “the sphere of protected action must be related closely to the immunity’s justifying purposes.” Id. at 755. That principle militated in favor of expansive immunity: “In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” Id. at 756. The Court recognized that given the “broad variety of areas, many of them highly sensitive,” of presidential discretionary responsibility, in “many cases it would be difficult to determine which of the President’s innumerable ‘functions’ encompassed a particular action.” Id. Such function could not, however, be defined by probing the President’s motive for the contested action or by simply claiming a violation of law. The plaintiff in Fitzgerald , for example, could not avoid the immunity bar by alleging that the President’s motive for terminating him was retaliatory, and thus unlawful, and therefore fell outside the outer perimeter of his duties. See id. at 756. Such a “construction would subject the President to trial on virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.” Id. President Nixon thus enjoyed absolute immunity from suit because it was clearly within his constitutional and *26 statutory authority to prescribe reorganizations and reductions in force within a military branch— the stated reason for Plaintiff’s termination. Id. at 757. Such action “lay well within the outer perimeter of [a President’s] authority.” Id.
Fitzgerald thus established a scope of presidential immunity for civil money damages that is unquestionably capacious, though not categorical. The Supreme Court contemplated that, at least, there might be some actions by a President that would fall outside the outer perimeter of his official responsibilities and expose him to a civil suit. What lay beyond the outer perimeter would come into some focus fifteen years later in Clinton v. Jones .
There, President Bill Clinton, while in office, faced a suit by Paula Jones that, in the main,
alleged that he had engaged in sexually inappropriate conduct while he was the Governor of
Arkansas and had retaliated against her for rebuffing his advances.
Clinton v. Jones
,
b. The parties’ positions on official-acts immunity
Guided by the foregoing principles, the court turns to the parties’ arguments. President
Trump bears the burden of establishing that he is immune from suit.
See Banneker Ventures, LLC
v. Graham
,
The complained-of actions of the President in these matters can be generally framed as falling into three categories: his pre–January 6th tweets, the January 6 Rally Speech, and his failure to promptly act once the Capitol was breached by rioters. President Trump argues that these acts fall into two presidential “functions”: (1) the constitutional duty to “take Care that the Laws be faithfully executed,” U.S. Const., art. II, § 3, and (2) speaking on matters of public concern. Swalwell Trump Mot. at 8–11; Blassingame Trump Mot. 12; Reply in Supp. of Def. President Trump’s Mot. to Dismiss, ECF No. 43 [hereinafter Thompson Trump Reply], at 3–6. Across his various briefs, President Trump describes these functions in different ways. With respect to faithful execution of the laws, President Trump says that he “had an ever-present duty to ensure that the election laws were followed, including the certification process.” Thompson Trump Reply *28 at 3. Quoting from a law review student note, he says that enforcing election laws is “at the core of the executive branch’s duty to faithfully execute the law.” Id. (internal quotation marks and citation omitted). As to speaking on matters of public concern, the President argues that he “was engaged in discretionary action pursuant to his Constitutional duty to ensure that the laws were faithfully executed by petitioning Congress not to certify the electors from States with ongoing election challenges.” Blassingame Trump Mot. at 10–11. Elsewhere he contends that the speech and social media posts complained of by Plaintiffs all addressed matters of public concern and thus are “within the outer perimeter of the Presidential office.” Thompson Trump Reply at 5. “[A] political speech by the President is not at the ‘outer perimeter’ of his duties,” he says; rather, “it is at dead center.” Swalwell Trump Mot. at 9.
The court finds that President Trump’s Take Care Clause argument is misleading and wrong as a matter of law, and that his contention with respect to speech of public concern is too simplistic.
i. The Take Care Clause Article II, Section 3 vests in the President the authority to “take Care that the Laws be faithfully executed.” Those are “sweeping words,” Myers v. United States , 272 U.S. 52, 122 (1926), but they do not confer limitless presidential authority or the authority to encroach on the powers vested in the co-equal branches, see Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 587–88 (1952). Presidential authority remains constrained by the Constitution and the laws that Congress enacts. See id. at 587 (“In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”); id. at 588 (“The President’s order does not direct that a congressional policy be executed in a manner *29 prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed by the President.”).
President Trump cites no constitutional provision or federal statute that grants or vests in the President (or the Executive Branch) any power or duty with respect to the Certification of the Electoral College vote, at least in the manner in which he conceives it. That is because there is none. The Constitution spells out the respective responsibilities of various actors in the election of the President. [11] The Constitution provides that States are to select Electors who will cast votes for President and Vice President, and the Electors transmit a tally of those votes to the President of the Senate. U.S. Const. art. II, § 1, cl. 3; id. amend. XII. The President of the Senate “in the presence of the Senate and House of Representatives” shall “open all the certificates and the votes shall then be counted.” Id. amend. XII. A sitting President is prescribed no role.
The Electoral Count Act, Pub. L. No. 49-90, 24 Stat. 373 (1887), fills in procedural details not addressed in the Constitution. It, too, prescribes no role for a sitting President. A Joint Session of the Senate and the House of Representatives must meet “at the hour of 1 o’clock in the afternoon” on “the sixth day of January succeeding every meeting of the electors.” 3 U.S.C. § 15. The President of the Senate, as the presiding officer, opens the certificates of the electoral votes and hands them to tellers appointed by each House, who make a list of the votes. Id. When announcing each certificate, the President of the Senate calls for objections, which if made must be in writing and signed by one Senator and one member of the House of Representatives. Id. Thereafter, the Senate and the House withdraw to their respective chambers to consider each objection, and “each Senator and Representative may speak to such objection or question five minutes, and not more than once[.]” Id. § 17. The presiding officer must cut the debate off after *30 two hours. Id. He also has the “power to preserve order” during the session. Id. § 18. The Act even details where the presiding officer, the Speaker, the Senators, the Representatives, the tellers, and others are to sit in the chamber. Id. § 16. And it commands that the session “not be dissolved until the count of electoral votes shall be completed and the result declared.” Id. As this summary demonstrates, a sitting President has no expressly identified duty to faithfully execute the laws surrounding the Certification of the Electoral College. So, perhaps it is not surprising that President Trump does not identify any law relating to the Certification that he was purportedly executing through his tweets and the January 6 Rally Speech.
Nor does he identify any authority that would support his assertion that merely exhorting non–Executive Branch officials to act in a certain way is a responsibility within the scope of the Take Care Clause. Scholars have emphasized that the Take Care Clause is written in the passive voice (“take Care that the Laws be faithfully executed”). They have interpreted that construction to mean that the Framers envisioned not that the President personally would implement the laws but that their actual execution would be carried out by others subject to the President’s direction and supervision. See, e.g. , Andrew Kent et al., Faithful Execution and Article II , 132 H ARV . L. R EV . 2111, 2126 (2019); Gillian E. Metzger, The Constitutional Duty to Supervise , 124 Y ALE L.J. 1836, 1875 (2015). The President’s Take Care Clause duty therefore does not extend to government officials over whom he has no power or control. Here, the Vice President, acting as President of the Senate, and members of Congress had constitutionally and statutorily prescribed duties to carry out the Certification. Their actions are those of a co-equal branch, not subject to *31 Executive Branch control. President Trump’s advocacy of the scope of their duties and how they should be performed therefore falls outside even the expansive Take Care Clause. [12]
In summoning authority in aid of this argument, President Trump leaves out critical
context. President Trump relies on a law review note for the general proposition that “enforcing
election laws . . . [strikes] at the core of the executive branch’s duty to faithfully execute the law.”
Thompson
Trump Reply at 3 (quoting Alton L. Lightsey, Note,
Constitutional Law: The
Independent Counsel and Supreme Court’s Separation of Powers Jurisprudence
, 40 U. F LA . L. R EV . 563, 573 (1988)). What President Trump omits from that quote, however, makes his citation
grossly misleading. The full quote reads: “However, enforcing election laws
through litigation
[strikes] at the core of the executive branch’s duty to faithfully execute the law. It must therefore
belong solely to the executive.” Lightsey,
supra
, at 573 (emphasis added). Including “through
litigation” completely changes the meaning of the sentence. The President can enforce election
laws through litigation initiated by the Department of Justice or the Federal Election Commission,
agencies over which he has appointment authority. The case the Lightsey note cites,
Buckley v.
Valeo
, makes that clear: “A lawsuit is the ultimate remedy for a breach of the law, and it is to the
President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care
that the Laws be faithfully executed.’”
ii. Speech on matters of public concern
The court turns next to President Trump’s assertion that his alleged actions all involve speech on matters of public concern and therefore are well within the President’s duties. As he puts it: “It is enough that the nature of the activity, a speech by the President, is the type of activity normal and customary to the presidency. Indeed, it was not at the outer perimeter of the President’s duties—it was dead center.” Thompson Trump Reply at 2.
The court agrees with President Trump in two respects. First, speech is unquestionably a
critical function of the presidency. “The President of the United States possesses an extraordinary
power to speak to his fellow citizens and on their behalf.”
Trump v. Hawaii
,
But to say that speaking on matters of public concern is a function of the presidency does not answer the question at hand: Were President Trump’s words in this case uttered in performance of official acts, or were his words expressed in some other, unofficial capacity? The President’s proposed test—that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit—goes too far. It mirrors what the Supreme Court has said cannot be the basis for absolute immunity: “[T]o construct an immunity from suit for unofficial acts grounded purely in the identity of [the President’s] office is unsupported by precedent.” Clinton , 520 U.S. at 695. And the Supreme Court has recognized different capacities in which the person occupying the Office of the President can act: “Presidents and other offiсials face a variety of demands on their time, . . . some private, some political, and some as a result of official duty.” Id. at 705 n.40. [13] Thus, to say that the President spoke on a matter of public concern does not dispositively answer the question of whether he enjoys absolute immunity for such speech.
Consider some examples. At a rally promoting his reelection, an incumbent President touts his policy accomplishments and makes promises about a second term, but during his speech he instructs members of the crowd to “punch” a protester “in the face right now.” Or, take a President who speaks at a party fundraising event before a group of high-dollar donors, where he not only discusses pending legislation but also falsely and with malice accuses a political opponent who is *34 blocking the legislation of running a child-trafficking operation. Or, consider a President who appears at a campaign event for a candidate of his party who is running for Congress, and during his remarks touts the candidate because his election will help advance his agenda, but also calls on the crowd to destroy property as a sign of support. In each of these scenarios, the conduct of the President comes in the context of words uttered on matters of public concern, but it is doubtful that anyone would consider the President immune from tort liability for harm resulting from his speech. To be sure, these scenarios may seem far-fetched, but they illustrate an important point: blanket immunity cannot shield a President from suit merely because his words touch on matters of public concern. The context in which those words are spoken and what is said matter.
For their part, Plaintiffs urge the court to reject President Trump’s claim of absolute immunity for two reasons: first, because they “allege that he was acting solely in his personal capacity as a candidate ,” and second, because he “engaged in serious misconduct that obstructed a co-equal branch of government, removing his actions from the outer bounds of permissible presidential conduct.” Bass Pls.’ Omnibus Mem. of Law in Opp’n to Defs.’ Mots. to Dismiss, ECF No. 29 [hereinafter Thompson Pls.’ Opp’n], at 65 (internal quotation marks omitted); see also Pl. Swalwell’s Combined Opp’n to Defs.’ Mots. to Dismiss, ECF No. 23 [hereinafter Swalwell Opp’n], at 11 (arguing that “Trump conflates his role as a candidate with his role as President”); Blassingame Pls.’ Opp’n to Def.’s Mot. to Dismiss, ECF No. 21 [hereinafter Blassingame Pls.’ Opp’n], at 6 (“Article II does not provide Trump with immunity for inciting an insurrection.”). These formulations present their own set of problems.
For one, the line between President and candidate will not always be clear. A first-term President is, in a sense, always a candidate for office. It is not the least bit unusual for first-term Presidents to comment on public policy or foreign affairs at campaign events, or, in this day, to *35 announce policy changes by tweet during an election year. Plaintiffs offer no principled constitutional basis on which to discern how to categorize such acts. [14]
As for their contention that immunity cannot extend to a President that incites a mob to
attack a co-equal branch of government, while having surface appeal, it too runs into an analytical
problem. If what Plaintiffs mean to say is that an alleged violation of law by a President cannot
fall within the outer perimeter of his official duties, the Supreme Court rejected that very argument
in
Fitzgerald
. Such a “construction,” the Court said, “would subject the President to trial on
virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.
Adoption of this construction thus would deprive absolute immunity of its intended effect.”
Fitzgerald
,
iii. The President’s challenged acts
Rather than apply the parties’ proffered categorial rules to the immunity question, the court
thinks the better course is to evaluate the defense on the specific facts alleged and, based on those
facts, determine whether President Trump’s words were spoken in furtherance of a presidential
function. That is the approach that the D.C. Circuit took in
Banneker Ventures, LLC v. Graham
,
a case in which then–Board Member of the Washington Metropolitan Area Transit Authority
(“WMATA”) Jim Graham asserted absolute immunity from a suit accusing him of improperly
interfering with a develoрer’s ultimately unsuccessful project negotiations with WMATA.
Concededly, the scope-of-duty evaluation undertaken in Graham was quite rigorous, and such rigor arguably should not apply here with equal force. This case involves the President of the United States, not a board member of a public agency. ( Barr , on which Graham relied, involved the acting director of a federal agency.) There are separation-of-powers considerations at play here that were not present in Graham . Nevertheless, the court believes that Graham ’s basic approach applies; that is, in evaluating a presidential claim of absolute immunity the court must consider the relationship of the challenged conduct to the claimed corresponding function of the President.
In undertaking this analysis, the court starts from the following premise, as to which there should be no dispute: The Office of the President has no preference for who occupies it. Article II of the Constitution, which defines the powers and duties of the President, is agnostic as to whether a sitting President is elected to a new term. So, too, is federal statutory law. A function of the presidency therefore is not to secure or perpetuate incumbency. Plaintiffs’ allegations against President Trump accuse him of doing just that: devoting his last weeks in office to continuing his term as President of the United States through the Electoral College vote and certification process, even though he did not prevail in the general election.
Among his first alleged acts following the general election were tweets criticizing state officials for not doing enough to enable him to prevail in their states. Swalwell Compl. ¶ 36 (criticizing the governors of Arizona and Georgia and saying, “If they were with us, we would *38 have already won both”). The President also directly contacted local election officials and state legislators in Michigan, Pennsylvania, and Georgia to allegedly pressure them to overturn their election results. Id. ¶¶ 37–54. These efforts included urging local Michigan officials to reverse their certification of election results, id. ¶ 38, and saying to Georgia’s Secretary of State, “I just want to find 11,780 votes, which is one more than we have,” id. ¶ 53. He would later call that Georgia state official an “enemy of the people.” Thompson Compl. ¶ 47. President Trump also filed multiple lawsuits in jurisdictions in which he did not prevail. Id. ¶ 36. Those suits plainly were directed at securing incumbency. They, like his tweets and direct outreach tо state election officials, were not official acts.
The same is true with respect to his tweets regarding rallies that occurred in Washington, D.C., in November and December 2020. Those tweets did not advocate any policy changes or legislation. Rather, they expressly stated or implied that the rallies would help him remain President. Blassingame Compl. ¶¶ 23, 25, 26 (tweeted photo of rally captioned “We will WIN!”); id. ¶ 27 (tweet stating “WE HAVE JUST BEGUN TO FIGHT!!!”).
That, too, was the purpose of the January 6 Rally. President Trump invited people to Washington, D.C., for the event. Id. ¶ 32. In a tweet referencing the January 6 Rally, he encouraged his followers to “Never give up.” Swalwell Compl. ¶ 56. On the eve of the January 6 Rally, the President’s tweets turned to Vice President Pence. Blassingame Compl. ¶ 38. The President expressed the view that the Vice President had the power, as President of the Senate, to reject states’ Electoral College certifications and return them to be recertified. Id. The clear purpose of such recertification would be to allow Electoral College votes to be recast in his favor: “All Mike Pence has to do is send them back to the States, AND WE WIN.” Id. These tweets were not official acts but issued to help him “win.”
Nor did planning for the January 6 Rally involve official duties. Those acts took place largely through President Trump’s campaign organization. In mid-December, the campaign used campaign funds to pay Event Strategies, Inc., the company that would secure the permit for the January 6 Rally. Blassingame Compl. ¶ 31. The campaign’s Director of Finance was listed as the “VIP Lead” for the rally, Swalwell Compl. ¶ 97, and a “top Trump campaign fundraiser oversaw the logistics, budgeting, funding and messaging” for the rally, Thompson Compl. ¶ 68. The Trump campaign and various related entities paid more than $3.5 million to assist in organizing. Blassingame Compl. ¶ 39. President Trump also allegedly participated directly in the planning. He was involved in decisionmaking about the speaking lineup and music selection. Thompson Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his campaign proposed that the rally include a march to the Capitol,” even though the permit they had obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This permit does not authorize a march from the Ellipse”). Organizing the January 6 Rally involved no presidential function.
And then there is the January 6 Rally Speech itself. The court has considered it in its entirety, analyzing it beyond the words quoted in the Complaints. The court will go into greater detail about the Speech later in this opinion. For present purposes it suffices to say that while the Speech did touch on matters of public concern (namely President Trump’s pledge to work on election laws in a second term), the main thrust of the Speech was not focused on policy or legislation. It was to complain about perceived cases of election fraud that led President-elect Biden to win more votes in closely contested states, to urge members of Congress to object to certain state certifications, and to exhort the Vice President to return those certifications to those states to be recertified. Much like the tweets leading up to the January 6 Rally, the words spoken *40 by the President—without delving into the motivation behind them—reflect an electoral purpose, not speech in furtherance of any official duty.
To deny a President immunity from civil damages is no small step. The court well
understands the gravity of its decision. But the alleged facts of this case are without precedent,
and the court believes that its decision is consistent with the purposes behind such immunity.
Subjecting a president to potential liability for the acts described in the Complaints will not
“diver[t] . . . the President’s attention during the decisionmaking process” with “needless worry as
to the possibility of damages actions stemming from any particular official decision.”
Clinton
,
iv. Section 1986 claim The foregoing comes with one important caveat: President Trump is immune as to Swalwell’s failure-to-act claim under § 1986. That provision states:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned [in section 1985 of this title], are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such *41 wrongful act, which such person by reasonable diligence could have prevented.
42 U.S.C. § 1986. The statutory provision is unique. It requires persons with knowledge of a conspiracy proscribed in § 1985 and with the means to prevent the conspiracy to take affirmative actions to do so. A person who refuses or neglects to exercise such power is liable for damages to those persons whose injuries could have been prevented.
Swalwell alone asserts a claim under § 1986 against President Trump. He alleges that President Trump knew about the alleged § 1985 conspiracy, had the power to prevent it, and failed to exercise “reasonable diligence” to avoid harm. Specifically, he asserts that “when it was clear that rioters had stormed the Capitol, and Congress was unable to certify the results of the Electoral College vote, [President Trump] had the power to stop the rioters but refused and, instead, encouraged them.” Swalwell Compl. ¶ 190. That allegation, it would seem, makes out a § 1986 claim against the President.
But the President cannot be held liable for his failure to exercise his presidential powers, at least under § 1986. Just as he is immune for acts that fall within the outer perimeter of his official responsibilities, so too must he be immune for alleged failures to exercise that official responsibility. Were it otherwise, Presidents routinely would be subject to suit for not doing more or for not acting at all. Absolute immunity would be gutted if a plaintiff could avoid it simply by alleging a failure to exercise presidential power. The court therefore dismisses Swalwell’s § 1986 claim. [16]
3.
The Political Question Doctrine
President Trump raises a related jurisdictional argument: these cases present a
nonjusticiable political question.
See Zivotofsky ex rel. Zivotofsky v. Clinton
,
For starters, the court already has held that the President’s actions leading up to the riot at the Capitol building were not undertaken in his official capacity. To that extent, these cases implicate no policy choice or value determination committed to the Executive Branch. That holding alone takes this case outside of the political question doctrine.
But even if the court uses the doctrine’s analytical framework, President Trump fares no
better. He first argues that because this suit is “based upon the words or action of the President,”
an adjudication “would improperly regulate the executive department, in violation of Article II,
§ 1 which requires that the executive power be exercised solely by the President.”
Thompson
Trump Mot. at 11–12. If by that argument the President means that any suit touching on
presidential speech gives rise to a political question, that cannot be, because the Constitution says
*43
nothing about a President’s sрeech. Moreover, the Supreme Court has never held that just because
a case involves review of a President’s claimed exercise of his general Article II executive powers
it is nonjusticiable. That is not the law.
See, e.g.
,
Youngstown Sheet & Tube
,
The President next argues that to adjudicate these cases would force the court “to make a
value determination about what is or is not proper for the President to say during a political speech
when advocating for governmental action.”
Thompson
Trump Mot. at 12
.
It is true that, in a sense,
an adjudication here might involve a “judgment” of the President’s speech, “[b]ut that has never
been enough, by itself, to trigger the political question doctrine’s jurisdictional bar.”
Cf. Hourani
,
President Trump also tries a different approach. He suggests that because he was
impeached by the House but acquitted by the Senate for his actions relating to January 6th, a
judicial inquiry of his conduct raises a political question because it might “displace the Senate as
the final arbiter on the subject of impeachment, showing disrespect for a co-equal branch.”
Blassingame
Trump Mot. at 14. But, of course, this court is in no sense conducting a review of
the impeachment proceedings; nor could it do so.
See Nixon
,
4. The Impeachment Judgment Clause President Trump also seeks dismissal based upon his impeachment proceedings in a different way: he contends that the Impeachment Judgment Clause forecloses civil liability of someone who is not convicted following an impeachment trial. The court understands this argument to challenge its subject matter jurisdiction. The Impeachment Judgment Clause provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
U.S. Const. art. I, § 3, cl. 7. According to the President, because the Impeachment Judgment Clause speaks only to further action against a “Party convicted,” and is silent as to a person not convicted, it follows that the Clause “forbids further litigation of the same claims by those acquitted by the Senate.” Thompson Trump Mot. at 13.
In support of this reading, the President invokes the
expressio unius est exclusio alterius
canon of statutory interpretation, which means that “expressing one item of [an] associated group
or series excludes another left unmentioned.”
Chevron U.S.A. Inc. v. Echazabal
,
In fact, the historical evidence is to the contrary. An Office of Legal Counsel (OLC) Opinion from 2000, which the President himself cites, provides a helpful summary. See Whether a Former President May Be Indicted and Tried for the Same Offense for Which He Was Impeached by the House and Acquitted by the Senate, 24 Op. O.L.C. 110, 113 (2000). That opinion concludes, “We are unaware of any evidence suggesting that the framers and ratifiers of the Constitution chose the phrase ‘the party convicted’ with a negative implication in mind.” Id. at 120.
Indeed, if the Impeachment Judgment Clause were intended to imply that acquittal by the Senate would block criminal prosecution for the same offenses, one would expect that at least one participant in the process of framing and ratifying the Constitution would have pointed out this negative implication. We are aware of none.
Id. at 121–24. The court finds the OLC’s exhaustive historical recitation of the origins of the Impeachment Disqualification Clause to be persuasive. The court therefore draws no negative implication from the words of the Impeachment Judgment Clause that would bar civil liability of a President acquitted following impeachment. [17]
5. Res Judicata and Collateral Estoppel President Trump attempts to make one last use of his impeachment proceedings: he contends that his acquittal bars litigation of the present claims on the grounds of res judicata and collateral estoppel. Thompson Trump Mot. at 13–14. He devotes scant attention to this argument in Thompson and Swalwell —largely one conclusory paragraph in each motion, id. at 14; Swalwell Trump Mot. at 14–15—but devotes more attention to it in Blassingame , Blassingame Trump Mot. at 14–18. The court addresses it as if fully raised in all three cases.
The doctrine of res judicata, also known as claim preclusion, provides that “a final
judgment on the merits of an action precludes the parties or their privies from relitigating issues
that were or could have been raised in that action.”
Allen v. McCurry
,
Under the doctrine of res judicata . . . a subsequent lawsuit will be barred if there has been prior litigation (1) involving the same claims or cause of action, (2) between the same parties or their privies, and
(3) there has been a final, valid judgment on the merits, (4) by a court of competent jurisdiction.
Smalls v. United States
,
[C]ollateral estoppel bars successive litigation of an issue of fact or law when “(1) the issue is actually litigated; (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by the parties or their privies; and (4) under circumstances where the determination was essential to the judgment, and not merely dictum.”.
Capitol Servs. Mgmt., Inc. v. Vesta Corp.
,
Applying these preclusion doctrines strikes the court as more complicated that it might
seem at first blush. Plaintiffs, for instance, argue that the President’s Senate impeachment trial is
not a prior “litigation” because the term “litigation” is defined to mean the resolution of disputes
in a court of law.
See Thompson
Pls.’ Opp’n at 73. But the Supreme Court has recognized that
preclusion principles can bind an Article III court based on a final judgment from an administrative
agency acting in a judicial capacity.
See B & B Hardware, Inc. v. Hargis Indus., Inc.
, 575 U.S.
138, 148 (2015) (“Both this Court’s cases and the Restatement make clear that issue preclusion is
not limited to those situations in which the same issue is before two
courts
.”). And, there is a more
than colorable argument to be made that the Senate acts in a judicial capacity when “try[ing]” an
official on an Article of Impeachment.
See, e.g.
,
In re Comm. on the Judiciary, U.S. House of
Representatives
, 951 F.3d 589, 596 (D.C. Cir. 2020) (“The constitutional text confirms that a
Senate impeachment trial is a judicial proceeding.”),
vacated and remanded sub nom. Dep’t of
Just. v. House Comm. on the Judiciary
,
Still, the court thinks that neither doctrine applies for several reasons. First, the text of the
Impeachment Judgment Clause does not support their application. As discussed, that Clause
expressly contemplates that a person impeached and convicted could face a criminal trial.
See Nixon
,
Second, although it is not a settled question, the court doubts that any Plaintiff is in privity
with the House of Representatives if one deems the House as the opposing party in an impeachment
trial. The
Blassingame
Plaintiffs certainly are not in privity with members of the House. Swalwell
and the Bass Plaintiffs are members of the House, but in voting for the Article of Impeachment
and, in Swalwell’s case, prosecuting it, those Plaintiffs were acting in their legislative capacities
*49
as representatives of their constituents. The Supreme Court has long recognized that the law treats
members of Congress differently depending on the capacity in which they are acting.
See, e.g.
,
Raines
,
Third, applying preclusion principles here would require the court to assess the adequacy
of the Senate proceedings, an inquiry that is nonjusticiable.
See Nixon
,
Finally, it is impossible to discern whether there was a “final, valid judgment on the merits”
for purposes of res judicata,
Smalls
,
The court therefore holds that neither res judicata nor collateral estoppel bars these suits or precludes litigation of any issue or fact.
B. Failure to State a § 1985(1) Claim
Having concluded that all claims against Defendants, except one (Swalwell’s § 1986 claim), are justiciable, the court now turns to the question of whether Plaintiffs have stated a claim under § 1985(1). All Defendants argue that Plaintiffs have not. Their arguments are as follows: (1) Swalwell and the Bass Plaintiffs lack statutory standing to bring suit under § 1985(1); (2) Swalwell and the Bass Plaintiffs are not “covered federal officials” under § 1985(1); [18] (3) no Plaintiff can state a claim because members of Congress were not discharging a “duty” on January 6th; and (4) Plaintiffs have failed to allege a plausible conspiracy among Defendants and others. The court rejects the first three arguments outright. As to the fourth, the court finds that Plaintiffs have pleaded a plausible § 1985(1) conspiracy against President Trump, the Oath Keepers, and Tarrio, but not Trump Jr. and Giuliani.
1. Statutory Standing
Inquiry into a plaintiff’s statutory standing asks whether the plaintiff “has a cause of action
under the statute.”
See Lexmark Int’l, Inc. v. Static Control Components, Inc.
,
Section 1985 authorizes a “party” that is “injured in his person or property” to bring suit to
recover damages for such injury against any “one or more of the conspirators” of a conspiracy
proscribed by § 1985(1). 42 U.S.C. § 1985(3). No one makes the argument that such broad text
might permit a suit by anyone who can satisfy the requirements of Article III, and likely for good
reason: The Supreme Court in
Lexmark
rejected such an expansive reading of the remedial
provision of the Lanham Act, which authorizes suit by “‘any person who believes that he or she is
likely to be damaged’ by a defendant’s false advertising.”
Lexmark
,
The Supreme Court has “presume[d]” that “a statutory cause of action extends only to plaintiffs whose interests ‘fall within the zone of interests protected by the law invoked.’” Id. at *52 129 (citation omitted). Though originally formulated in the context of challenges under the Administrative Procedure Act, the Court has “made clear” that the zone-of-interests analysis “applies to all statutorily created causes of action.” Id. A court should look to “the interests protected” by the statute to determine whether a plaintiff comes with its zone of interests. Id. at 131.
The interests protected by § 1985(1) are decidedly broad. As the Seventh Circuit observed in Stern v U.S. Gypsum :
[W]e think it important to note here that Congress, in enacting what became § 1985(1), did not fashion a narrow and limited remedy applicable only to the southern states in 1871. The outrageous conditions there at that time were, no doubt, what induced Congress to act, but it chose to do so with a statute cast in general language of broad applicability and unlimited duration.
The statutory text supports this conclusion. Section 1985(1) makes unlawful conspiracies
whose object is a person who occupies “any office, trust, or place of confidence under the United
States” or is “any officer of the United States.” 42 U.S.C. § 1985(1). The words used by Congress
here are decidedly expansive and, on their face, would seem to encompass members of Congress.
President Trump nevertheless insists that these words must be read in tandem with their usage in
the Constitution. President Trump thus maintains that the word “officer” includes only persons
*53
“appoint[ed] by the President, or of one of the courts of justice[,] or heads of departments
authorized by law to make such an appointment.”
Thompson
Trump Mot. at 16–17 (quoting
United States v. Mouat
,
The court doubts that Congress intended to use the Constitution as a dictionary for
interpreting the words found in § 1985(1). President Trump points to no case or legislative history
to support his preferred reading. To the contrary, cases like
Stern
have read the scope of § 1985(1)
broadly, consistent with its words.
Cf.
Moreover, the Supreme Court has not reflexively imported constitutional meanings into
federal statutes, as President Trump urges the court to do.
Lamar v. United States
,
To conduct that inquiry the court focuses on the meaning of the words used in § 1985(1). Courts “normally interpret[] a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President.” Bostock v. Clayton County , 140 S. Ct. 1731, 1738 (2020). Starting with the word “office,” the Bass Plaintiffs have convincingly shown that Reconstruction-Era dictionaries defined that term to include legislators. One law dictionary defined “office” to mean “a right to exercise a public function or employment, and to take the fees and emoluments belonging to it,” and identified as an example of a “political office” “the office of the president of the United States, of the heads of departments, [or] of the members of the legislature .” J OHN B OUVIER , L AW D ICTIONARY , A DAPTED TO THE C ONSTITUTION AND L AWS OF THE U NITED S TATES OF A MERICA , AND OF THE S EVERAL S TATES OF THE U NION 259 (5th ed. 1855) (emphasis added). [19] That same dictionary defines “officer” to include “members of congress.” Id. at 260. Other dictionaries from that period are to the same effect. 2 A LEXANDER M. B URRILL , A L AW D ICTIONARY AND G LOSSARY 257 (2d ed. 1867) (defining “office” to mean any “position or *55 station in which a person is employed to perform certain duties,” including “[a] station or employment conferred by election of the people”); E DWARD H OPPER & J.J.S. W HARTON , L AW L EXICON , OR D ICTIONARY OF J URISPRUDENCE : E XPLAINING THE T ECHNICAL W ORDS AND P HRASES E MPLOYED IN THE S EVERAL D EPARTMENTS OF E NGLISH L AW 537 (2d ed. 1860) (defining an “office” as “that function by virtue whereof a person has some employment in the affairs of another, whether judicial, ministerial, legislative , municipal, ecclesiastical” (emphasis added)).
The Reconstruction-Era Congress also would have understood the term “trust” to include members of Congress. In fact, the term had a meaning broader than the term “office.” It included “a confidence reposed in one person for the benefit of another.” B URRILL , supra , at 549. And, though the term “place of confidence” does not appear in the legal dictionaries of the day, its natural meaning must be as all-encompassing as “trust.” There can be little doubt that the plain text of § 1985(1) reaches members of Congress. [20]
President Trump pushes back on none of this definitional history.
[21]
Instead, he cites
Supreme Court and lower court decisions that use the term “federal officer” in describing the
persons protected under § 1985(1).
Thompson
Trump Reply at 18. For instance, he cites
Kush v.
Rutledge
, in which the Court, when describing the “classes of prohibited conspiracy” under § 1985,
said that § 1985(1) made unlawful interference with “the performance of official duties by federal
*56
officers.”
But no case says any such thing. A reading of the above-cited cases makes evident that the courts were using “federal officer” as shorthand for persons protected under § 1985(1) and, in the lower-court decisions, to distinguish such persons from state and local officials or private citizens. Of course, the term “federal officer” never appears in § 1985(1), and none of the cited cases engages in a textual analysis of § 1985(1) at all. The definitional shorthand of “federal officer” is of no use in the present case. And, in the end, President Trump’s argument still requires equating “officer” with the meaning of the term as used in the Constitution. The court already has rejected that equivalency. The question here is whether the Reconstruction-Era Congress would have understood members of Congress to occupy an “office, trust, or place of confidence under the United States” or qualify as an “officer of the United States.” They certainly would have.
The court therefore finds that members of Congress plainly are within § 1985(1)’s zone of interests. Swalwell and the Bass Plaintiffs therefore have statutory standing to advance a claim.
2. Whether Plaintiffs Are “Covered Federal Officials” Under § 1985(1) President Trump advances a variation of the above argument, which the foregoing discussion largely resolves. He contends that to successfully plead a § 1985(1) claim a plaintiff must allege conspiratorial action directed against a “covered federal official,” and because members of the House do not so qualify, Swalwell and the Bass Plaintiffs fail to state a claim. Thompson Trump Mot. at 26 n.8; Swalwell Trump Mot. at 29 n.12. For the same reasons the court found Swalwell and the Bass Plaintiffs to have statutory standing, the court rejects the instant contention: the plain words of § 1985(1), as they would have been understood during the Reconstruction Era, reach members of Congress. Therefore, a conspiracy to interfere with the discharge of their duties, by force, intimidation, or threat states a § 1985(1) claim.
But there is a bit more to say here. The Bass Plaintiffs advance an additional theory for stating a claim under § 1986 that does not depend on their occupying an office or position protected under § 1985(1). They contend that the alleged conspiracy also was designed to “prevent, by force, intimidation, or threat any person from accepting or holding any office, trust, or place of confidence under the United States.” 42 U.S.C. § 1985(1) (emphasis added). Those persons that the alleged conspiracy prevented from “accepting or holding” such office were President-elect Biden and Vice President–elect Harris. See Thompson Pls.’ Opp’n at 30–31 (explaining that the “broader aim of the conspiracy was to prevent President Biden and Vice President Harris from ‘accepting or holding’” their elected offices). The court agrees with this alternative theory. The Offices of the President and the Vice President unquestionably qualify as “any office, trust, or place of confidence under the United States.” Persons seeking to “accept[] or hold[]” those offices therefore are, in President Trump’s terms, “covered federal officials.” So, even if the Bass Plaintiffs are not “covered federal officials,” President-elect Biden and Vice President–elect Harris *58 are, and a conspiracy directed at preventing them from accepting or holding office states a § 1985(1) claim. Under this alternative theory of conspiracy, the Bass Plaintiffs would be able to seek damages as “person[s]” injured by that alleged conspiracy. 42 U.S.C. § 1985(3).
3. Whether Members of Congress Were Discharging a “Duty” on January 6th The Oath Keepers advance an argument that no other Defendant does. They maintain that members of Congress were not discharging any “duty” on January 6th. Thompson Oath Keepers’ Mot. at 4–8. They contend that the Constitution requires the opening of electoral ballots “in the presence of . . . the House of Representatives,” U.S. Const. amend. XII, and therefore vests in individual members no duty but only “the opportunity to observe” the Electoral College vote. Id. at 7–8. In the Oath Keepers’ view, because § 1985(1) prohibits conspiracies to prevent federal officials from “discharging any duties,” the Bass Plaintiffs cannot state a claim.
This reading of the Constitution defies common sense. The House of Representatives can only act through its individual members. The Certification of the Electoral College vote, in particular the opening of Electoral ballots, cannot proceed “in the presence” of the House unless its individual members show up. Concededly, the Constitution does not expressly require a member to appear for the Certification. But the Constitution lacks such express appearance requirements as a general matter. Article I, which establishes the Congress and defines its powers, nowhere requires that an individual Senator or Representative appear for any particular proceeding. Article I, § 7, for example, which sets forth the process for passing legislation, does not require a Senator or Representative to cast a vote, but no one would reasonably say that the Constitution affords them only an “opportunity” to vote but no duty. The Oath Keepers’ argument is also too myopic. It ignores the Electoral Count Act, which does define roles for individual Senators and Representatives in the certification process, including making objections to ballots *59 and, importantly, debating and voting on such objections. See supra pp. 29–30. Swalwell and the Bass Plaintiffs allege that they were at the Capitol on January 6th for those very purposes. Swalwell Compl. ¶ 10 (alleging that Swalwell “was at the Capitol performing his official duties as a member . . . to count the Electoral College votes and certify the winner of the 2020 Presidential election”); Thompson Compl. ¶¶ 12–21 (alleging that, for example, one member Plaintiff “was present in the Capitol on January 6, 2021, prepared to discharge her duties of tallying ballots of the Electoral College and certifying the results of the 2020 presidential election”).
The Oath Keepers’ reading also is inconsistent with the broad scope of § 1985(1). Under their reading, only expressly mandated acts qualify as a “duty,” and everyday discretionary acts— like voting on legislation or nominees, speaking to the press, or meeting with a constituent—would not. A member of Congress is not required to do any of those things. To read § 1985(1) to not reach such acts would eviscerate its purpose.
The court also notes that the Oath Keepers’ argument does nothing to defeat the Bass Plaintiffs’ alternative theory of liability under § 1985(1): that the charged conspiracy was intended to prevent the President-elect and the Vice President–elect from “accepting or holding” office. On this alternative theory, it does not matter whether members of the House had a “duty.”
Finally, the Oath Keepers make two additional arguments that the court quickly dismisses. First, they contend that the Bass Plaintiffs have pleaded themselves out of a claim because they allege that the Joint Session of Congress was in recess at the time rioters entered the Capitol building and, therefore, the “delay” in the proceedings occasioned on January 6th was due to “this internal reason,” not Defendants’ conduct. Thompson Oath Keepers’ Mot. at 9. That argument makes little sense for it does not matter what initially caused the Joint Session to recess or when it occurred: the alleged interference occurred during the hours that it took to remove the Oath *60 Keepers and others from the Capitol building, when the Bass Plaintiffs otherwise would have been discharging their duty to certify election results. Second, the Oath Keepers argue that “Plaintiffs further allege that each member in his or her personal capacity were delayed, but this states no constitutional violation as a matter of law because the Constitutional provisions asserted in the complaint do not speak to or address delay of the proceeding.” Id. It is not at all clear what the Oath Keepers mean by this. The Bass Plaintiffs assert that the Oath Keepers’ conduct both prevented and delayed discharge of their duties; § 1985(1) requires no textual hook in the Constitution to define the interfered-with duty, although there is one here, or the ways in which someone might prevent such duty from being discharged.
4. Pleading of a Conspiracy The court now reaches the most significant of Defendants’ sufficiency-of-pleading contentions: that all Plaintiffs have failed to plead a plausible conspiracy. Section 1985(1) is a conspiracy statute, and so pleading a plausible conspiracy is an essential element of all Plaintiffs’ § 1985(1) claims.
Before evaluating the sufficiency of the allegations, the court must address two arguments
made by Trump and Giuliani about the pleading requirements. Invoking the standard under
Rule 9(b), they have insisted that Plaintiffs must plead conspiracy with “particularity.”
See, e.g.
,
Thompson
Trump Mot. at 25;
Thompson
Giuliani Mot. at 10. Not so. The Supreme Court in
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit
,
Second, Trump and Giuliani contend that Swalwell and the Bass Plaintiffs must plead
“actual malice” as part of their § 1985(1) claim because they are public officials.
Thompson
Trump
Mot. at 26;
Thompson
Giuliani Mot. at 11. Again, not so. The element of “actual malice” derives
from defamation claims against public figures.
See New York Times Co. v. Sullivan
,
a. Principles of civil conspiracy With these two issues out of the way, the court turns to describing the general principles of civil conspiracy. The term “conspiracy,” particularly in the minds of non-lawyers, likely conjures images of people meeting secretly to hatch a plan to violate the law. That is certainly one type of conspiracy. But the law does not require such a degree of deliberation, formality, or coordination. Conspiracies can be, and often are, established with far less direct proof.
“A civil conspiracy is defined as an agreement between two or more people to participate
in an unlawful act or a lawful act in an unlawful manner.”
Hobson v. Wilson
,
At this stage of the case—on motions to dismiss—Plaintiffs’ burden to establish a conspiracy is lighter than it would be following discovery. A plaintiff at this stage must draft a complaint “with enough factual matter (taken as true) to suggest that an agreement was made.” Twombly , 550 U.S. at 556. Such factual matter must establish “plausible grounds to infer an agreement” but not “a probability requirement at the pleading stage.” Id. The standard for pleadings “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.” Id. “[A]n allegation of parallel conduct and a bare assertion of conspiracy will not suffice.” Id.
b. The alleged conspiracy Before assessing the sufficiency of Plaintiffs’ pleadings, it is important to bear in mind what the alleged unlawful conspiracy is and what it is not. It is not that Defendants conspired to sow doubt and mistrust about the legitimacy of the electoral process and results of the 2020 presidential election. Nor is it that Defendants worked together to influence, pressure, or coerce local officials, members of Congress, and the Vice President to overturn a lawful election result. Though many Americans might view such conduct to be undemocratic or far worse, neither example is an actionable conspiracy under § 1985(1). The conspiracy alleged is that Defendants agreed “to prevent, by force, intimidation, or threat,” (1) Swalwell and the Bass Plaintiffs from discharging their duties in certifying the results of the presidential election and (2) the President- elect and Vice President–elect from “accepting or holding” their offices. [22] It is this conspiracy that Plaintiffs must plausibly establish through well-pleaded facts. The court begins with a detailed summary of those facts and then, assuming those facts to be true, assesses their sufficiency as to each coconspirator.
i. Summary of allegations [23] According to Plaintiffs, in the months leading up to January 6th, President Trump and his allies created the conditions that would enable the violence that happened that day. The President’s role during this period was multifaceted. It included regularly issuing false tweets insisting, among other things, that the elections in those states and localities where he had not prevailed were rampant with voter fraud; that he actually had won in those places when in truth he had lost; that *64 “big city . . . crooks” had plotted to “steal votes”; that if certain Republican governors had done more he would have won; and that a voting-machine vendor had helped rig elections. President Trump also directly contacted state and local election officials in places where he had lost to convince them to take steps to reverse their election results. And, he invited supporters to come to Washington, D.C., for a rally on January 6th, the day of the Certification of the Electoral College vote. President Trump directly participated in rally planning, and his campaign committee provided substantial funding and organizational assistance. Giuliani and Trump Jr. aided the President in the foregoing efforts. They coordinated with him, spread similar disinformation, contacted state and local election officials, and agreed to speak at the January 6 Rally.
According to the Complaints, President Trump convinced his supporters that the election had been stolen from him and, importantly, them. These supporters included organized groups, such as the Proud Boys and the Oath Keepers. Some supporters, responding to President Trump’s tweets, engaged in acts of intimidation toward state and local election officials. For example, after President Trump said that a Georgia election official was an “enemy of the people,” that official received threats of violence and assassinations. When another Georgia official asked President Trump to condemn these actions, urging him to “Stop inspiring people to commit acts of violence,” and warned that “Someone is going to get shot, someone is going to get killеd,” the President remained silent. Another state election official had armed protesters descend on her home.
Some supporters organized and attended rallies, including two in Washington, D.C., on November 14, 2020, and December 12, 2020. The Proud Boys and the Oath Keepers attended these District of Columbia–based events. At the December 12 rally, an Oath Keepers leader said that President Trump “needs to know from you that you are with him, [and] that if he does not do it now while he is Commander in Chief, we’re going to have to do it ourselves later, in a much *65 more desperate, much more bloody war.” Violence also broke out in connection with these rallies. Police clashed with some of the President’s supporters. Dozens were arrested, persons were stabbed, police were injured, and property destroyed.
President Trump first promoted the January 6 Rally on December 19, 2020, announcing on Twitter: “Statistically impossible to have lost the 2020 Election. Big protest in D.C. on January 6th. Be there, will be wild!” Some of the President’s supporters interpreted the President’s tweet as a call to violence. Some followers on the message board TheDonald.win openly talked of bringing weapons to Washington, D.C., and engaging in acts of violence. Some on Twitter and Facebook posted about “Operation Occupy the Capitol” and used hashtags such as #OccupyCapitols. The Proud Boys and the Oath Keepers, for their part, began active planning for January 6th, including reaching an agreement to work together. Oath Keepers leaders announced on Facebook “an alliance” and “a plan with the Proud Boys.” Tarrio posted on the social media site Parler that the Proud Boys would “turn out in record numbers on Jan 6th” but would be “incognito” and “spread across downtown DC in smaller teams.” The Proud Boys and the Oath Keepers prepared for the January 6 Rally by obtaining tactical equipment, communications equipment, and bear mace.
On the eve and the morning of the January 6 Rally, the President tweeted yet again that the election had been rife with fraud and insisted that the Vice President could send ballots back to the states for recertification. He also tweeted that Washington, D.C., “is being inundated by people who don’t want to see an election victory stolen by emboldened Radical Left Democrats. Our Country has had enough, they won’t take it anymore!”
Supporters, including the Proud Boys and Oath Keepers, arrived at the Ellipse for the January 6 Rally before 9:00 a.m. They heard from various speakers, including Giuliani and *66 Trump Jr. (more on their statements below), both of whom repeated false claims about the election being stolen and asserted that the Vice President could block the Certification. President Trump spoke last. [24] He gave a 75-minute speech based on the false premise that he had won the election and that it had been stolen from him and those gathered. At the start, he said that “Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with, we will ‘stop the steal.’” Early in the speech he alluded to rally-goers marching to the Capitol building. The President told the assembled crowd that “Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country because you’re sworn to uphold our Constitution. Now it is up to Congress to confront this egregious assault on our democracy.” He continued:
And after this, we’re going to walk down—and I’ll be there with you—we’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. And we’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness.
You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today we will see whether Republicans stand strong for integrity of our elections, but whether or not they stand strong for our country, our country.
The President’s call for a march to the Capitol was not, however, authorized. It was something that he and his campaign had devised. The Rally’s permit said: “This permit does not authorize a march from the Ellipse.”
As the President’s speech continued, the crowd grew increasingly animated. The President told them that if the Vice President did not send ballots back for recertification, “you will have a President of the United States for four years . . . who was voted on by a bunch of stupid people who lost all of these states. You will have an illegitimate president. That is what you will have, and we can’t let that happen.” At some point after, the crowd began shouting “Storm the Capitol,” “Invade the Capitol Building,” and “Take the Capitol Right Now.” They also began to chant “Fight Like Hell” and “Fight for Trump.” [25] At the conclusion of his speech, the President told the rally-goers: “I said, ‘Something’s wrong here. Something’s really wrong. Can’t have happened.’ And we fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Almost immediately after, he told the crowd:
So, we’re going to walk down Pennsylvania Avenue . . . and we’re going to the Capitol and we’re going to try and give—the Democrats are hopeless. They’re never voting for anything. But we’re going to try to give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness they need to take back our country.
So, let’s walk down Pennsylvania Avenue. Meanwhile, before the President’s speech had concluded, the Proud Boys had already breached the outer perimeter of the Capitol grounds. One Proud Boys member shouted, “Let’s take the fucking Capitol!,” to which one responded, “Don’t yell it, do it.” They then broke into smaller groups and began breaking through exterior barricades. By the time the crowd arrived from the Ellipse, those barricades had been compromised. The crowd eventually overwhelmed Capitol police and was able to enter the building. Some rioters told Capitol police officers, “[W]e *68 are listening to Trump—your boss” and “We were invited here by the President of the United States.” Some entered the House chamber, and others, the Speaker of the House’s office. The Oath Keepers entered the building in a military-style formation, dressed in paramilitary equipment, helmets, and reinforced vests. One message exchanged among them said: “We have a good group. We have about 30–40 of us. We are sticking together and sticking to the plan.” As a result of rioters entering and remaining in the Capitol, Congress and the Vice President were prevented from proceeding with the Certification of the Electoral College vote as planned.
President Trump had not, as promised, joined the crowd at the Capitol. Instead, he was already back at the White House by the time rioters entered the Capitol. He began watching live televised reports of the siege. He first tweeted a video of his Rally Speech. Then, about fifteen minutes after rioters had entered the Capitol building, President Trump tweeted:
Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify correct set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands truth!
Rioters at the Capitol building repeated the tweet on megaphones. Minutes later, the President called Senator Mike Lee looking for Senator Tommy Tuberville; Senator Lee informed the President that the Vice President was being evacuated by the Secret Service and that he had to go. Later, when House Leader Kevin McCarthy spoke to the President by phone and urged him to call off the rioters, the President responded: “Well, Kevin, I guess these people are more upset about the election than you are.” About a half hour after rioters had entered the Capitol building, the President tweeted: “Please support our Capitol Police and Law Enforcement. They are truly on the side of our Country. Stay peaceful!” Approximately 90 minutes later, at 4:17 p.m., the President tweeted a video in which he again repeated that the election had been stolen but told his *69 supporters to go home. He said to them, “I know your pain. I know you’re hurt,” аnd added, “We love you. You’re very special.” At 5:40 p.m., law enforcement finally cleared the Capitol building. At 6:00 p.m., the President sent another tweet:
These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!
Congress would resume the Certification later that night and would complete it at 3:41 a.m. the next day.
ii. President Trump
Viewing the foregoing well-pleaded facts in the light most favorable to Plaintiffs, and
drawing all reasonable inferences in their favor,
see Hurd v. District of Columbia
,
Recall, a civil conspiracy need not involve an express agreement; so, the fact that President
Trump is not alleged to have ever met, let alone sat down with, a Proud Boy or an Oath Keeper to
hatch a plan is not dispositive. A tacit agreement—one that is “implied or indicated . . . but not
actually expressed”—is enough.
Tacit
, M ERRIAM -W EBSTER ’ S D ICTIONARY , https://www
.merriam-webster.com/dictionary/tacit (last visited Feb. 8, 2022). The key is that the conspirators
share the same general conspiratorial objective, or a single plan the essential nature and general
scope of which is known to all conspirators.
See Hobson
,
First, a court “must initially look to see if the alleged joint tortfeasors are pursuing the same
goal—although performing different functions—and are in contact with one another.”
Halberstam
,
Second, it is also plausible that the President was aware of the essential nature and general
scope of the conspiracy.
See Hobson
,
Third, Plaintiffs’ allegations show a call-and-response quality to the President’s
communications, of which the President would have been aware. The Complaints contain
numerous examples of the President’s communications being understood by supporters as direct
messages to them and, in the case of the January 6 Rally, as a call to action. When he told the
Proud Boys to “stand back, and stand by,” Tarrio tweeted in response, “Standing by sir.” After
publicly criticizing state election officials, some of those election officials became the object of
threats of violence. When the President tweeted an invitation to the January 6 Rally, pro-Trump
message boards and social media lit up with some supporters expressing a willingness to act
violently, if needed. Based on these allegations, it is reasonable to infer that before January 6th
*72
the President would have known about the power of his words and that, when asked, some of his
supporters would do as he wished. On January 6th they did so. When he called on them to march
to the Capitol, some responded, “Storm the Capitol.” Thousands marched down Pennsylvania
Avenue as directed. And, when some were inside the Capitol, they told officers, “We were invited
here by the President of the United States.” Even the President’s counsel conceded that an
invitation to commit a tort and the acceptance to do so would establish a civil conspiracy. Hr’g
Tr. at 67–68;
see also id.
at 56–57 (same concession by Giuliani’s counsel);
id.
at 82 (same
concession by the Oath Keepers’ counsel). A plausible causal connection between the President’s
words and the response of some supporters is therefore well pleaded.
Cf. Hobson
,
Fourth, the President’s January 6 Rally Speech can reasonably be viewed as a call for collective action. The President’s regular use of the word “we” is notable. To name just a few examples: “We will not take it anymore”; “We will ‘stop the steal’”; “We will never give up”; “We will never concede”; “We will not take it anymore”; “All Mike Pence has to do is send it back to the states to recertify, and we become president”; “[W]e’re going to have to fight much harder”; “We can’t let that happen”; “We’re going to walk down . . .”; “We fight like hell”; “We’re going to walk down Pennsylvania Avenue.” “We” used repeatedly is this context implies that the President and rally-goers would be acting together towards a common goal. That is the essence of a civil conspiracy.
And, finally, a tacit agreement involving the President is made all the more plausible by
his response to the violence that erupted at the Capitol building.
[26]
Approximately twelve minutes
after rioters entered the Capitol building, the President sent a tweet criticizing the Vice President
for not “hav[ing] the courage to do what should have been done to protect our Country.” Rioters
repeated that criticism at the Capitol, some of whom saw it as encouragement to further violence.
It is reasonable to infer that the President would have understood the impact of his tweet, since he
had told rally-goers earlier that, in effect, the Vice President was the last line of defense against a
stolen election outcome. The President also took advantage of the crisis to call Senator Tuberville;
it is reasonable to think he did so to urge delay of the Certification. And then, around 6:00 p.m.,
after law enforcement had cleared the building, the President issued the following tweet: “These
are the things and events that happen when a sacred landslide election victory is so
unceremoniously & viciously stripped away from great patriots who have been badly & unfairly
treated for so long. Go home with love & in peace. Remember this day forever!” A reasonable
observer could read that tweet as ratifying the violence and other illegal acts that took place at the
Capitol only hours earlier.
See Hobson
,
The President argues that, at most, Plaintiffs have pleaded that the President “made political statements . . . at a rally meant to persuade political officials.” Thompson Trump Mot. at 27. But that contention misses the forest for the trees. It ignores the larger context of the Rally Speech. *74 For months, the President led his supporters to believe the election was stolen. When some of his supporters threatened state election officials, he refused to condemn them. Rallies in Washington, D.C., in November and December 2020 had turned violent, yet he invited his supporters to Washington, D.C., on the day of the Certification. They came by the thousands. And, following a 75-minute speech in which he blamed corrupt and weak politicians for the election loss, he called on them to march on the very place where Certification was taking place. The President’s narrow characterization of his conduct accounts for none of this.
The President also contends that a conspiracy involving him not only is “far-fetched, but it is also in direct opposition to many of the statements made by Mr. Trump at the very rally.” Id. at 28. The only portion of the Speech he cites to support that proposition is that, early on, he said that rally-goers soon would be “marching over to the Capitol building to peacefully and patriotically make your voices heard.” See id. The President certainly uttered those words. But he also uttered others, which he ignores. Immediately before directing them to the Capitol, he told rally-goers that they would need to “fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” When those supporters did “fight like hell,” just as he had told them to, the President did not demand they act “peacefully and patriotically.” He instead tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country.” Later, he referred to those who had attacked the Capitol as “great patriots,” and told them to, “Remember this day forever!” These other statements by the President stand in stark contrast to his passing observation that rally-goers would soon be “peacefully and patriotically” marching to the Capitol. Those three words do not defeat the plausibility of Plaintiffs’ § 1985(1) claim at this stage.
The President also dismisses two allegations as weak and speculative that purport to tie him to the Proud Boys and the Oath Keepers. The court relies on neither at this juncture but thinks one may prove significant in discovery. The first is an allegation that “a person associated with the Trump White House communicated with a member of the Proud Boys by phone.” Thompson Compl. ¶ 70. The court agrees that this is a speculative allegation and has not considered it. The other concerns the President’s confidant, Roger Stone. Stone posted on Parler in late December that he had met with the President “to ensure that Donald Trump continues as our president.” Shortly thereafter, Stone spoke with Tarrio, and later he used the Oath Keepers as his security detail for the January 6 Rally. The court does not rely on these allegations to establish the President’s knowledge of the Proud Boys or the Oath Keepers. Other alleged facts make that inference plausible. That said, Stone’s connections to both the President and these groups in the days leading up to January 6th is a well-pleaded fact. Discovery might prove that connection to be an important one.
The President also suggests that, at most, Plaintiffs have pleaded independent, parallel
conduct that does not make out a plausible conspiracy under
Twombly
.
Thompson
Trump Rеply
at 21–22. But that argument ignores the multiple ways in which the President interacted with his
supporters, including organized groups. The Complaints detail how the President’s tweets led to
threats of violence against state election officials; how his tweet inviting supporters to Washington,
D.C., on January 6th was understood by some to be a call to action; and how he called on thousands
to participate in an unauthorized march on the Capitol building that ended in acts of violence. That
is a pattern of mutually supportive activity that supports a plausible conspiracy.
Hobson
, 737 F.2d
at 53. Such mutually supportive activity distinguishes this case from
Twombly
, in which the Court
*76
held that the complaint failed to allege a conspiracy because market factors, not concerted action,
were a more plausible explanation for the alleged conduct.
See Twombly
,
Finally, the President argues that Plaintiffs cannot construct a conspiracy based on “Mr. Trump’s political activity,” which is protected speech. Thompson Trump. Mot. at 28. The court addresses the President’s First Amendment defense below.
iii. Giuliani The court reaches a different conclusion as to Giuliani. There is little doubt that Plaintiffs have adequately pleaded that Giuliani was involved in a conspiracy to “engage[] in a months-long misinformation campaign to convince Trump’s supporters that the election had been illegally stolen.” Thompson Pls.’ Opp’n at 42. But, as the court stated earlier, such a conspiracy does not violate § 1985(1). What Plaintiffs must plausibly establish is that Giuliani conspired to prevent Congress from discharging its duties on January 6th by force, intimidation, or threat. There, they fall short.
In addition to his pre–January 6th actions—which alone do not establish Giuliani as a
§ 1985(1) conspirator—Plaintiffs point to two of Giuliani’s acts that occurred on January 6th:
(1) his rally speech, in which he said, “So, let’s have trial by combat” and “We’re going to fight
to the very end to make sure that doesn’t happen,” and (2) a phone call that he made to members
of Congress, urging them to delay the Certification.
Thompson
Pls.’ Opp’n at 42–43. These
allegations, individually and taken together, do not “nudge[]” Plaintiffs’ § 1985(1) claim against
Giuliani “across the line from conceivable to plausible.”
Twombly
,
As to his rally remarks, the court believes Giuliani’s words are not enough to make him part of a § 1985(1) conspiracy. Critically, Giuliani uttered no words that resembled a call to action. “Trial by combat” was not accompanied by a direction to do anything. And, given the speaker, *77 those words were not likely to move the crowd to act. There is no allegation that anyone took Giuliani’s words as permission to enter the Capitol. And there are no allegations that Giuliani at any time before January 6th uttered words advocating or inspiring violence. Indeed, as discussed further below, the court holds that Giuliani’s rally remarks are constitutionally protected speech. Nor is Giuliani alleged to have been involved in rally planning or known that the President would direct the crowd to march to the Capitol. And he did not express solidarity with the rally-goers after some violently assaulted police and forced their way into the Capitol. Giuliani’s words at the rally are not sufficiently additive to make him a § 1985(1) coconspirator.
Neither are his phone calls to lawmakers on January 6th after the Capitol was breached. There is some conflict among Plaintiffs on this allegation. The Bass Plaintiffs allege that such calls were made “while the insurrection was ongoing.” Thompson Compl. ¶ 138. The Blassingame Plaintiffs, on the other hand, say that two such calls occurred at 7:00 p.m., after law enforcement had cleared the Capitol. Blassingame Compl. ¶ 128. Whatever the timing of those calls, they at most establish Giuliani as an opportunist, not someone who shared in the same general conspiratorial objective as others before the violence at the Capitol occurred. Though Giuliani unquestionably was a central figure in the President’s efforts to sow doubt and mistrust in the election’s outcome, the court cannot say, based on the facts alleged, that he plausibly shared the common conspiratorial goal of violently disrupting the Certification.
iv. Trump Jr. The court reaches the same conclusion as to Trump Jr. The allegations against him are even thinner than those against Giuliani. Before January 6th, he sent false and misleading tweets about the election and publicly criticized officials who did not suрport his father. He also spoke at the rally, during which he repeated false claims about election fraud and theft. He also warned *78 Republicans who failed to back the President, “we’re coming for you, and we’re gonna have a good time doing it.” As discussed below, the court believes these words to be protected speech. That is all Plaintiffs have attributed to Trump Jr. [27] He is not alleged to have participated in rally planning, known that the President would direct a march to the Capitol, or expressed support for the rioters and their actions. The allegations against Trump Jr. are insufficient to make him a coconspirator in a plan to disrupt Congress from performing its duties.
v. The Oath Keepers The Oath Keepers also challenge the sufficiency of the conspiracy allegations against them. But that argument goes nowhere. At a minimum, the alleged facts establish a § 1985(1) conspiracy between the Oath Keepers and the Proud Boys. After the President’s announcement of the January 6 Rally, a leader of the group posted a Facebook message that he had “organized an alliance between Oath Keepers . . . and Proud Boys. We have decided to work together and shut this shit down.” Days later, another leader posted on Facebook that the Oath Keepers had “orchestrated a plan with the Proud Boys.” Those statements, if true, would be direct evidence of a civil conspiracy. The Complaints also detail each group’s preparations for January 6th, and they allege that members from each group forcibly entered the Capitol building intent on disrupting the Certification. These well-pleaded allegations easily establish a plausible § 1985(1) conspiracy between the two groups.
The Oath Keepers make two primary contentions. First, they maintain that the Thompson complaint lacks sufficient details, such as names of the leaders who posted to Facebook, to establish a conspiracy. Thompson Oath Keepers’ Mot. at 14. But Rule 8’s notice-pleading rules *79 apply here, and the Oath Keepers have not cited any case that requires the specificity they demand to survive a motion to dismiss. Second, they complain that they are being held responsible for the acts of the group’s members. See id. at 15. Plaintiffs, however, have pleaded sufficient facts to establish respondeat superior liability at this stage.
vi. Tarrio Tarrio’s role in the conspiracy is established through well-pleaded allegations. It is reasonable to infer that, as the leader of the Proud Boys, he would have participated in forming the announced “alliance” and “orchestrated plan” with the Oath Keepers. Thompson Compl. ¶ 63. He also said that the Proud Boys would be there in “record numbers on Jan 6th,” would be “incognito,” and would “spread across downtown DC in smaller teams.” Id. ¶ 64. It is also reasonable to infer that he would have been involved in the Proud Boys’ collection of tactical vests, military-style communication equipment, and bear mace. Id. ¶ 65. These allegations are sufficient to plausibly establish Tarrio as a conspirator.
* * * To sum up, the court holds that Plaintiffs have successfully pleaded a § 1985(1) conspiracy claim against President Trump, the Oath Keepers, and Tarrio. They have fallen short as to Giuliani and Trump Jr. Failure to State a § 1986 Claim
C. The court already has held that President Trump is immune from suit as to Swalwell’s § 1986 claim. The question remains whether Swalwell has stated such a claim against the other defendants, Giuliani and Trump Jr. He has not.
Recall, § 1986 provides a cause of action against anyone who has “knowledge that any of
the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be
*80
committed, and having the power to prevent or aid in preventing the commission of the same,
neglects or refuses so to do.” 42 U.S.C. § 1986. Thus, if Giuliani or Trump Jr. “knew of a
[§ 1985(1)] conspiracy, were in a position to prevent the implementation of that conspiracy, and
neglected or refused to prevent it, they are liable under § 1986.”
Park v. City of Atlanta
, 120 F.3d
1157, 1160 (11th Cir. 1997). Swalwell’s pleading falls short in two respects. First, it fails to plead
sufficient facts establishing that Giuliani or Trump Jr. knew of a tacit plan to prevent members of
Congress from discharging their duties. The Complaint does not, for example, allege either was
involved in the planning of the January 6 Rally or knew in advance that the President would call
on rally-goers, including organized groups, to march on the Capitol while Congress was in session.
Second, it does not allege that Giuliani or Trump Jr. had the “power” to prevent such conspiracy.
Few courts appear to have addressed this element, but those finding the requisite power to be
present have done so where the defendant was a government official or employee with some formal
authority to act.
See, e.g.
,
Peck v. United States
,
D. The court thus far has held that President Trump is not immune from suit as to Plaintiffs’ § 1985(1) claim and that Plaintiffs have successfully pleaded such claim against him. The question remains, however, whether that claim (and others) can move forward when, as here, the President’s *81 alleged conspiratorial acts are predicated entirely on his speech. This is a substantial constitutional question. The First Amendment grants all citizens expansive protections in what they can say, but that protection must be particularly guarded when it comes to the President of the United States. As the Supreme Court has repeatedly reminded, a President’s position in our system of government is unique and his duties and responsibilities “are of unrivaled gravity and breadth.” Vance , 140 S. Ct. at 2425. A President could not function effectively if there were a risk that routine speech might hale him into court. Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a President’s speech. But the court believes this is that case. Even Presidents cannot avoid liability for speech that falls outside the expansive reach of the First Amendment. The court finds that in this one-of-a-kind case the First Amendment does not shield the President from liability.
1.
The First Amendment and Speech on Matters of Public Concern
The Supreme Court has spoken in soaring terms about the First Amendment’s protection
of speech on matters of public concern. “Expression on public issues ‘has always rested on the
highest rung of the hierarchy of First Amendment values.’”
NAACP v. Claiborne Hardware Co.
,
Protection for speech on matters of public concern is decidedly capacious, but it is not
unbounded. “The presence of protected activity . . . does not end the relevant constitutional
inquiry. Governmental regulation that has an incidental effect on First Amendment freedoms may
be justified in certain narrowly defined instances.”
Id.
at 912. But when considering liability in
such “narrowly defined instances,” courts must tread carefully. When, as here, liability is based
in part on “a public address—which predominantly contained highly charged political rhetoric—
[the court must] approach this suggested basis of liability with extreme care.”
Id.
at 926–27. Such
care extends even when, as in this case, the allegation is that speech produced violence. “When
violence occurs during activity protected by the First Amendment, that provision mandates
‘precision of regulation’ with respect to ‘the grounds that may give rise to damages liability’ as
well as ‘the persons who may be held accountable for those damages.’”
McKesson v. Doe
, 141
S. Ct. 48, 50 (2020) (quoting
Claiborne Hardware
,
Thus, the court’s task here is to determine whether a “narrowly defined instance” applies to President Trump’s speech such that he “may be held accountable” for the damages it may have caused. Plaintiffs here advance two such “narrowly defined instances”: (1) the President participated in an unlawful conspiracy and (2) the President’s January 6 Rally Speech incited violence. Thompson Pls.’ Opp’n at 49–56; Swalwell Opp’n at 18–19; Blassingame Pls.’ Opp’n at 36–39. The court considers in turn each of these grounds for denying President Trump’s speech First Amendment protection.
a. Participation in an unlawful conspiracy
Plaintiffs say that “conspiratorial statements and agreements in furtherance of unlawful
actions are not protected by the First Amendment.”
Thompson
Pls.’ Opp’n at 50. They cite various
cases for various propositions, including that the First Amendment does not authorize “knowing
association with a conspiracy,”
id.
at 50 (quoting
Scales v. United States
, 367 U.S. 203, 229
(1961)); it does not confer a right to “impede or obstruct” a government employee’s “performance
of duty by threats,”
id
(quoting
United States v. Varani
,
But the court finds these broad-stroke principles inapt here. For one, cases like Scales , Varani , and Alvarez involve criminal conspiracies, which the Supreme Court seems to have put in its own category. Plaintiffs sometimes suggest that the President engaged in criminal conduct, but what is before the court is a civil conspiracy, and it would be imprudent for the court to assess whether factual allegations in a civil complaint make out criminal conduct. Even the low probable- cause standard is higher than Rule 8’s plausibility standard. Other cases, like California Motor Transport , arise in the context of economic regulation, involving, for example, statutes barring monopolization or concerted activity, where the speech at issue usually is not on matters of public concern. Speech used to facilitate the fixing of prices or the manipulation of markets is naturally afforded less First Amendment protection than a presidential speech on a matter of public concern.
Speech on matters of public concern may even be protected if it is part of a concerted
violation of law. That is the lesson of the Supreme Court’s decision in
Claiborne Hardware
.
*84
There, Mississippi state courts had found the NAACP; its state field secretary, Charles Evers; and
others liable for losses incurred by white merchants as a result of a boycott—a kind of civil
conspiracy—that violated state law “on three separate conspiracy theories.” 458 U.S. at 891.
Indeed, the Mississippi Supreme Court had found that the defendants “had
agreed
to use force,
violence, and ‘threats’ to effectuate the boycott.”
Id.
at 895. The Supreme Court observed that
the boycott was “supported by speeches and nonviolent picketing” aimed at expressing
dissatisfaction with “the social structure that denied them rights to equal treatment and respect”—
plainly matters of public concern.
Id.
at 907. The Court, in assessing the defendants’ plea for First
Amendment protection, did not dismiss it out of hand merely because the defendants had conspired
to violate state law. Rather, in recognition of the weighty First Amendment values at stake, the
Court narrowed the scope of inquiry to whether any of the business losses were caused by speech
that was not otherwise protected under the First Amendment—namely, speech that caused violence
or constituted threats of violence.
Id.
at 916. Once the Court identified speech that might so
qualify, it did not declare the speech unprotected because it was part of a conspiracy; instead, it
evaluated the speech under the narrow “incitement” standard announced in
Brandenburg v. Ohio
,
The court here must follow the same path the Court did in
Claiborne Hardware
.
President Trump’s speech cannot be deemed unprotected merely because Plaintiffs have alleged it
to be part of a conspiratorial agreement to violate a civil statute. Instead, because his speech is on
a matter of public concern, it will lose its First Amendment protection only if it meets the stringent
Brandenburg
“incitement” standard.
See Tri-Corp Housing, Inc. v. Bauman
,
b. Brandenburg and incitement A trio of Supreme Court cases has come to define the incitement exception to the First Amendment. They are Brandenburg , Hess v. State of Indiana , and Claiborne Hardware . A brief discussion of each helps to frame the determination this court must make.
Brandenburg
involved the conviction of a member of the Ku Klux Klan under Ohio’s
Criminal Syndicalism statute.
Four years later, in Hess v. State of Indiana , the Court applied Brandenburg to a defendant convicted under Indiana’s disorderly conduct statute. 414 U.S. 105, 105–06 (1973). The defendant was participating in a demonstration of between 100 and 150 people when the sheriff gave an order to clear the streets. As the sheriff passed him, Hess was standing off the street and said words to the effect of “We’ll take the fucking street later” or “We’ll take the fucking street again.” Id. at 107. Witnesses testified that Hess did not appear to be exhorting the crowd to go back into the street, was not addressing any particular person, and though loud, was no louder than anyone else in the area. Id. Applying Brandenburg , the Court overturned Hess’s conviction. The Court observed that Hess’s statement was “[a]t best, . . . counsel for present moderation, at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time.” Id. at 108. The Court said that, because Hess was not directing his statement to any person or group of persons, it could not be said he was advocating any action. Id. Also, “since there was no evidence or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder,” his words could not be punished based on the mere “tendency to lead to violence,” as the Indiana Supreme Court had held. Id. at 108–09 (citation omitted).
The last of the three cases is Claiborne Hardware , the facts of which the court already has briefly discussed. The Court evaluated Charles Evers’s speech in the context of the boycott, during which he said to several hundred people, referring to boycott violators, “If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” 458 U.S. at 902. In another speech Evers warned that “the Sheriff could not sleep with boycott violators at night,” an *87 implicit threat to Black persons that retaliation for shopping at white establishments could come at any moment without the protection of law enforcement. Id. The Court held that the “emotionally charged rhetoric of Charles Evers’ speeches did not transcend the bounds of protected speech set forth in Brandenburg .” Id. at 928. The court acknowledged that Evers had used “strong language” and observed that if his “language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that lawful conduct.” Id. However, “[w]hen such appeals do not incite lawless action, they must be regarded as protected speech.” Id. The Court also said that “[i]f there were other evidence of his authorization of wrongful conduct, the references to discipline in the speeches could be used to corroborate that evidence.” Id. at 929. But because there was no evidence that “Evers authorized, ratified, or directly threatened acts of violence,” his words could not be used for such purpose. Id. The Court therefore vacated the damages award against Evers.
The Supreme Court has not had occasion to apply the Brandenburg test in the 40 years since Claiborne Hardware . Scholars have given it attention, but few federal appellate court decisions have applied it. The parties have not cited any D.C. Circuit case applying Brandenburg , and the court has not found one. [29] One treatise has distilled Brandenburg into a three-part test, requiring proof that “(1) the speaker subjectively intended incitement ; (2) in context, the words used were likely to produce imminent, lawless action; and (3) the words used by the speaker objectively encouraged and urged and provoked imminent action.” 5 R ONALD D. R OTUNDA & J OHN E. N OWAK , T REATISE ON C ONSTITUTIONAL L AW : S UBSTANCE AND P ROCEDURE § 20.15(d), *88 Westlaw (database updated May 2021). An en banc panel of the Sixth Circuit articulated a similar three-part test:
The Brandenburg test precludes speech from being sanctioned as incitement to riot unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends the speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.
Bible Believers v. Wayne County
,
In making that evaluation, both the words spoken and the context in which they are spoken matter. The Supreme Court said as much in Young v. American Mini Theaters :
The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which speech occurs, but also on exactly what the speaker had to say.
classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes’ statement for the Court in Schenck v. United States [:] . . . “[T]he character of every act depends upon the circumstances in which it is done . . . . The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic . . . .”
*89
Bearing the foregoing principles in mind, the court turns to evaluate President Trump’s speech under Brandenburg .
c. President Trump’s speech Plaintiffs do not contend that President Trump’s words prior to the January 6 Rally Speech (almost entirely through tweets) meets the Brandenburg incitement exception. They focus on the Rally Speech, so the court does, too, starting with a summary of what he said. [31]
The President spoke for 75 minutes. He spun a narrative in which he told those present that the election was “rigged” and “stolen,” and not just from him, but from them . He told attendees at the start that “ our election victory” had been taken away, “ we won this election,” and “[ w ] e didn’t lose.” He urged on the crowd, “We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved. . . . We will not take it anymore . . . . [W]e will ‘stop the steal.’” He said that elections in “Third World Countries” are “more honest” than the election that had just taken place. The President said all of this within the first few minutes of his remarks.
He then told the crowd what had to happen for them to “win” the election. “[I]f Mike Pence does the right thing, we win the election.” “All Mike Pence has to do is send it back to the states to recertify, and we become president, and you are the happiest people.” And he warned what would happen if the Vice President did not act: “[W]e’re stuck with a president who lost the election by a lot, and we have to live with that for four more years. We’re not going to let that happen.”
The President identified who was to blame for the “stolen” and “rigged” election: “radical left Democrats,” “weak Republicans,” “the fake news,” and “Big tech,” among others. He specifically identified those who he thought were the “weak Republicans” who would bear responsibility for a lost election: then–Senate Majority Leader McConnell, Representative Elizabeth Cheney, and Governor Brian Kemp (calling him “one of the dumbest governors in the United States”). He accused the media of “suppressing thought” and “suppress[ing] speech” and said it “was the enemy of the people. It’s the biggest problem we have in this country.” He told the crowd,
[W]e’re going to have to fight much harder, and Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country because you’re sworn to uphold our Constitution. Now it is time for Congress to confront this egregious assault on our democracy.
It was at this point that the President first said anything about a march to the Capitol. He said,
[A]fter this, we’re going to walk down—аnd I’ll be there with you— we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. And we’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.
He then said, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated,” and he added that “everyone here will soon be marching to the Capitol building to peacefully and patriotically make your voices heard.”
Moments later, he focused the crowd’s attention on the Certification. Referring to the Capitol, he said,
[W]e see a very important event though, because right over there, right there, we see the event going to take place. . . . We’re going to see whether or not we have great and courageous leaders or whether *91 or not we have leaders that should be ashamed of themselves throughout history, throughout eternity, they’ll be ashamed. And you know what? If they do the wrong thing, we should never ever forget that they did. Never forget. We should never ever forget.
The President continued, telling the crowd repeatedly that the election had been stolen. “We’ve amassed overwhelming evidence about a fake election,” he said to them. Changes in election procedure at the state level had “paved the way for fraud on a scale never seen before.” He then recited a litany of false claims about the ways in which the election had been stolen in Pennsylvania (e.g., over 200,000 more ballots cast than voters), Wisconsin (e.g., postal service workers were told to backdate 100,000 ballots), Georgia (e.g., election officials pulled “boxes . . . and suitcases of ballots out from under a table”), Arizona (e.g., 36,000 ballots were cast by noncitizens), Nevada (e.g., more than 42,000 double votes), and Michigan (e.g., thousands and thousands of ballots were improperly backdated). In the midst of reciting these examples of fraud, the President regularly alluded to what the Vice President had to do. He told rally-goers that, if Mike Pence failed to act, “You will have an illegitimate president, that’s what you’ll have. And we can’t let that happen.” He said, “I’m not hearing good stories” about the Vice President. And he again told those assembled that the election was a fraud: “this is the most fraudulent thing anybody’s—This is a criminal enterprise. This is a criminal enterprise.” And, he said that when fraud occurs “it breaks up everything, doesn’t it? What you catch somebody in a fraud, you’re allowed to go by very different rules. So I hope Mike has the courage to do what he has to do.”
In the final moments of his speech, the President spoke about the country’s future. He said he had to be “careful” in saying he was confident in our nation’s future: “If we allow this group of people to illegally take over our country, because it’s illegal when the votes are illegal, when the way they got there is illegal, when the States that vote are given false and fraudulent information.” He also warned that, because of a potential change in administration, “the *92 [immigrant] caravans are forming again. They want to come in again and rip off our country. Can’t let it happen.”
Finally, the President told them he suspected impropriety on election night itself: “Something’s wrong here. Something’s really wrong. Can’t have happened.” And then he said: “And we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.” Moments later, he concluded and told those assembled:
So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give—the Democrats are hopeless. They’re never voting for anything, not even one vote. But we’re going to try to give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.
d. Brandenburg applied to the January 6 Rally Speech The President’s words on January 6th did not explicitly encourage the imminent use of violence or lawless action, but that is not dispositive. In Hess , the Supreme Court recognized that words can implicitly encourage violence or lawlessness. In reversing Hess’s conviсtion, the Court held that there was “no evidence or rational inference from the import of the language” intended to produce, or likely to produce, imminent disorder. 414 U.S. at 109 (emphasis added). By considering the “import of the language,” and the “rational inferences” the words produce, the Court signaled that there is no safe haven under Brandenburg for the strategic speaker who does not directly and unequivocally advocate for imminent violence or lawlessness, but does so through unmistakable suggestion and persuasion. Federal appellate courts have understood the Brandenburg exception to reach implicit encouragement of violent acts. See, e.g. , Bible Believers , 805 F.3d at 246 (inquiring as the first element whether “the speech explicitly or implicitly encouraged the use of violence or lawless action”).
Having considered the President’s January 6 Rally Speech in its entirety and in context,
the court concludes that the President’s statements that, “[W]e fight. We fight like hell and if you
don’t fight like hell, you’re not going to have a country anymore,” and “[W]e’re going to try to
and give [weak Republicans] the kind of pride and boldness that they need to take back our
country,” immediately before exhorting rally-goers to “walk down Pennsylvania Avenue,” are
plausibly words of incitement not protected by the First Amendment. It is plausible that those
words were implicitly “directed to inciting or producing imminent lawless action and [were] likely
to produce such action.”
Brandenburg
,
The “import” of the President’s words must be viewed within the broader context in which the Speech was made and against the Speech as a whole. Before January 6th, the President and others had created an air of distrust and anger among his supporters by creating the false narrative that the election literally was stolen from underneath their preferred candidate by fraud and corruption. Some of his supporters’ beliefs turned to action. In the weeks after the election, some had made threats against state election officials and others clashed with police in Washington, D.C., following pro-Trump rallies. The President would have known about these events, as they were widely publicized. Against this backdrop, the President invited his followers to Washington, D.C., on January 6th. It is reasonable to infer that the President would have known that some supporters viewed his invitation as a call to action. President Trump and his advisors “actively monitored” pro-Trump websites and social media. Thompson Compl. ¶ 66. These forums lit up in response to the rally announcement. Some supporters explicitly called for violence on January 6th (e.g., calling for “massing hangings and firing squads”). Others took direct aim at the Certification itself (e.g., stating that people in the Capitol should “leave in one of two ways: dead or certifying Trump the rightful winner”) or at law enforcement (“Cops don’t have ‘standing’ if *94 they are laying on the ground in a pool of their own blood.”). Thompson Compl. ¶¶ 56–63; Swalwell Compl. ¶ 89; Blassingame Compl. ¶¶ 33–34. These violent posts were discussed “by media outlets regularly viewed by President Trump, including Fox News.” Thompson Compl. ¶ 66. The prospect of violence had become so likely that a former aide to the President predicted in a widely publicized statement that “there will be violence on January 6th because the President himself encourages it.” Id. Thus, when the President stepped to the podium on January 6th, it is reasonable to infer that he would have known that some in the audience were prepared for violence.
Yet, the President delivered a speech he understood would only aggravate an already volatile situation. For 75 uninterrupted minutes, he told rally-goers that the election was “rigged” and “stolen,” at one point asserting that “Third World Countries” had more honest elections. He identified who the culprits were of the election fraud: “radical Left Democrats” and “weak” Republicans. They were the ones who had stolen their election victory, he told them. He directed them not to “concede,” and urged them to show “strength” and be “strong.” They would not be able to “take back [their] country with weakness.” He told them that the rules did not apply: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” And they would have an “illegitimate President” if the Vice President did not act, and “we can’t let that happen.” These words stoked an already inflamed crowd, which had heard for months that the election was stolen and that “weak politicians” had failed to help the President.
So, when the President said to the crowd at thе end of his remarks, “We fight. We fight
like hell and if you don’t fight like hell, you’re not going to have a country anymore,” moments
before instructing them to march to the Capitol, the President’s speech plausibly crossed the line
into unprotected territory. These words did not “amount[] to nothing more than illegal action at
some indefinite future time.”
Hess
,
In his motions, President Trump largely avoids any real scrutiny of the actual words he
spoke or the context in which they were spoken. His tack entails essentially three arguments. First,
citing Justice Stevens’s dissent in
Morse v. Frederick
,
Next, the President focuses on the fact that when he first alluded to marching to the Capitol,
he said he expected rally-goers “to peacefully and patriotically make your voices heard.”
Blassingame
Trump Mot. at 25. Those words are a factor favoring the President.
See Nwanguma
,
Finally, President Trump plays a game of what-aboutism, citing fiery speeches from
Democratic legislators, including Plaintiff Waters, which he says likewise would not be protected
speech if the court were to find, as it has, that the President’s is not.
Thompson
Trump Reply at 8,
11–13. The court does not find such comparators useful. Each case must be evaluated on its own
merits, as the court has done above. If the President’s larger point is that a speaker only in the
rarest of circumstances should be held liable for political speech, the court agrees.
Cf. Bible
Believers
,
* * * The nineteenth century English philosopher John Stuart Mill was a fierce advocate of free speech. But Mill understood that not all speech should be protected. In his work On Liberty , Mill wrote, “No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act.” J OHN S TUART M ILL , O N L IBERTY 100 (London, John W. Parker & Son, 2d ed. 1859). As an example Mill offered the following:
An opinion that corn-dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn- dealer, or when handed about among the same mob in the form of a placard.
Id. at 100–01. President Trump’s January 6 Rally Speech was akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer’s home. He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them ; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building—the metaphorical corn-dealer’s house—where those very politicians were at work to certify an election that he had lost. The *98 Speech plausibly was, as Mill put it, a “positive instigation of a mischievous act.” Dismissal of Plaintiffs’ claims on First Amendment grounds is not warranted.
e. Giuliani and Trump Jr.
As the court already has said, it finds that Giuliani’s and Trump Jr.’s words spoken before
and on January 6th are protected expression. None of their words, explicitly or implicitly, rose to
the level of a call for imminent use of violence or lawless action. That is true even of Giuliani
saying, “Let’s have trial by combat.” That statement was made in the context of his assertion that
the election was rife with criminal fraud, and that he was “willing to stake “[his] reputation,” and
the President would too, “on the fact we’re going to find criminality.” But Giuliani never said
anything about where or when the “trial by combat” would occur. Giuliani’s statement is therefore,
at most, “advocacy of illegal action at some indefinite future time.”
Hess
,
Accordingly, the court dismisses all federal and District of Columbia–law claims brought by Swalwell and the Bass Plaintiffs against Giuliani and Trump Jr.
f. Oath Keepers
The Oath Keepers also contend that the § 1985(1) claim against them must be dismissed
because their alleged acts were protected speech, assembly, and petitioning.
Thompson
Oath
Keepers Mot. at 27–28. The court quickly dispenses with this argument. “The First Amendment
does not protect violence.”
Claiborne Hardware
,
The court also notes that, if the court were to dismiss the § 1985(1) claim against the Oath
Keepers for failing to overcome a First Amendment defense, Plaintiffs could easily cure any
deficiency through amendment. “The security of the community life may be protected against
incitements to acts of violence and the overthrow by force of orderly government.”
Near v.
Minnesota ex rel. Olson
,
F. What remains to address are President Trump’s motions to dismiss the District of Columbia–law claims asserted by Swalwell and the Blassingame Plaintiffs. (Recall, the Bass Plaintiffs advance only a single federal claim under § 1985(1).) The court considers these arguments solely as to President Trump because the court already has dismissed those claims brought by Swalwell against Giuliani and Trump Jr. on First Amendment grounds. The court takes up the District of Columbia–law claims in the order in which they appear in Swalwell’s Complaint, followed by any unique claims asserted by the Blassingame Plaintiffs. The court will note in the header when the claims overlap.
1. Negligence Per Se Based on Violation of District of Columbia Criminal Statutes ( Swalwell Counts 3 and 4 and Blassingame Counts 4 and 5 ) Swalwell and the Blassingame Plaintiffs advance two similar claims, which Swalwell styles as “Negligence Per Se ” and the Blassingame Plaintiffs style as “Violation of Public Safety Statute.” Swalwell Compl. at 50–51; Blassingame Compl. at 40–41. The court understands these claims to advance a theory under District of Columbia law that violations of criminal statutes can create civil liability. See Marusa v. District of Columbia , 484 F.2d 828, 834 (D.C. Cir. 1973) (setting forth “guidelines for determining whether violation of a criminal statute can create civil liability”). The court will refer to these as Plaintiffs’ “negligence per se” claims. [34] Here, Swalwell and the Blassingame Plaintiffs seek to predicate liability on alleged violations of D.C. Code § 22- 1322, which prohibits inciting of a riot, and D.C. Code § 22-1321, which prohibits acts of disorderly conduct.
At oral argument, the court expressed skepticism that the negligence per se counts state claims under District of Columbia law. See Hr’g Tr., at 180–90. But the court’s skepticism is nowhere matched by an argument in President Trump’s motions to dismiss. The court has searched in vain for a contention that these claims must be dismissed because a violation of the referenced criminal statutes fails to state a cause of action. The President’s motions do not address this theory of liability generally or Plaintiffs’ negligence per se claims specifically, let alone advance the concerns the court raised during oral argument. See Swalwell Trump Motion at 32–37; Blassingame Trump Motion at 33–41. The closest the President’s brief comes to addressing these claims is when he argues that President Trump owed no duty to Swalwell, see Swalwell Trump *101 Mot. at 33–34, but that argument is not made in the context of negligence per se law. [35] The President briefly addresses the anti-riot and disorderly conduct laws, but his argument is that those statutes do not reach political speech. Blassingame Trump Mot. at 33. But the court already has held that the President’s January 6 Rally Speech was not protected expression.
Ultimately, notwithstanding the court’s expressed doubts about the validity of the negligence per se claims, it is not the court’s job to raise arguments that a party has not. Accordingly, the negligence per se counts survive the motions to dismiss.
2. District of Columbia Anti-Bias Statute ( Swalwell Count 5) Swalwell also puts forth a claim under the District of Columbia anti-bias statute, D.C. Code § 22-3704. That statute provides a civil cause of action for, as relevant here, “any person who incurs injury to his or her person or property as a result of an intentional act that demonstrates an accused’s prejudice based on the actual or perceived . . . political affiliation of a victim of the subject designated act,” “[i]rrespective of any criminal prosecution or result of a criminal prosecution.” The statute defines “designated act” to mean a “criminal act, including . . . assault . . . and . . . inciting . . . assault.” D.C. Code § 22-3701(2). Swalwell alleges that President Trump committed these crimes and that they were “motivated by [Swalwell’s] political affiliation as a political opponent of Donald Trump.” Swalwell Compl. ¶ 210.
The court expressed doubt at oral argument that prejudice based on “affiliation as a political opponent of Donald Trump” qualifies as “political affiliation” for purposes of the District of Columbia anti-bias law. See Hr’g Tr., 190–91. The term “affiliation” is undefined in the statute; its ordinary meaning is “the state of belonging to a particular religious or political group.” *102 Affiliation , M ERRIAM -W EBSTER ’ S D ICTIONARY , https://www.merriam-webster.com/dictionary /affiliation (last visited Feb. 10, 2022). Opposing the President of the United States would not seem to fit that definition. But President Trump does not make this argument. See Swalwell Trump Mot. at 35–36. So, the court declines to dismiss on that ground.
President Trump advances two other arguments. First, he contends that Swalwell’s anti- bias claim fails “for all the reasons discussed elsewhere, especially since, incredibly, he alleges the use of political language he finds offensive gives rise not only to a cause of action but an actual crime.” Id. To the extent the court already has rejected arguments made “elsewhere,” it rejects them here, again. As for President Trump’s contention that offensive political language cannot give rise to an anti-bias cause of action, that mischaracterizes what the statute says and what Swalwell pleads. The statute does not make political speech a crime or actionable. Rather, it provides a cause of action for the victim of a crime that is motivated by bias. Here, Swalwell alleges that he was the victim of a criminal assault or incitement of an assault that was motivated by his “political affiliation.” Swalwell Compl. ¶¶ 209–214. [36] The claim therefore cannot be dismissed on the ground that the statute makes offensive political speech unlawful.
Second, President Trump argues that the statute only allows for recovery for injury to an individual’s “person or property,” D.C. Code § 22-3704, and that Swalwell only seeks recovery “for psychological or emotional harm,” which is “fatal to his bias claim.” Id. at 35–36. But that argument goes nowhere because the anti-bias law expressly permits recovery of “[a]ctual or nominal damages for economic or non-economic loss, including damages for emotional distress.” *103 D.C. Code § 22-3704(a)(2). [37] Swalwell therefore can proceed with his claim under the District of Columbia anti-bias law.
3. Intentional and Negligent Infliction of Emotional Distress ( Swalwell Counts 6 and 7)
Swalwell asserts a claim of intentional infliction of emotional distress (IIED) and an
additional claim of negligence infliction of emotional distress (NIED). To state a claim for IIED,
a plaintiff must allege “(1) extreme and outrageous conduct on the part of the defendant which
(2) intentionally or recklessly (3) causes the plaintiff [to suffer] severe emotional distress.”
Ortberg v. Goldman Sachs Grp.
,
“Severe emotional distress” for purposes of a IIED claim is a high bar. It “requires a
showing beyond mere ‘mental anguish and stress’ and must be ‘of so acute a nature that harmful
physical consequences are likely to result.’”
Competitive Enterprise v. Mann
, 150 A.3d 1213,
1261 (D.C. 2016). “Serious and verifiable” distress for an NIED claim is a lower bar, but it must
manifest in some concrete way, such as “by an external condition or by symptoms clearly
*104
indicative of a resultant pathological, physiological, or mental state.”
Jones v. Howard Univ., Inc.
,
Before moving to the next claim, the court notes that the Blassingame Plaintiffs also brought an IIED claim (Count 3). They have voluntarily dismissed that claim. Blassingame Pls.’ Opp’n at 32 n.12. That count will be dismissed without prejudice.
4. Aiding and Abetting Common Law Assault (Swalwell Count 8 and Blassingame Count 2)
Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-and- abetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases. [39]
Halberstam v. Welch
remains the high-water mark of the D.C. Circuit’s explanation of
aiding-and-abetting liability. The court there articulated two particular principles pertinent to this
case. It observed that “the fact of encouragement was enough to create joint liability” under an
aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.”
Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and- abetting liability at the pleadings stage.
President Trump urges the court to scrutinize Plaintiffs’ aiding-and-abetting theory under
the five factors set forth in the Restatement (Second) of Torts § 876(b), as cited in
Halberstam
.
Blassingame
Trump Mot. at 36–37. The five Restatement factors are (1) the nature of the act
encouraged, (2) the amount and kind of assistance given, (3) the defendant’s absence or presence
at the time of the tort, (4) his relation to the tortious actor, and (5) the defendant’s state of mind.
The
Halberstam
court also considered as an additional, sixth factor the duration of the assistance
*106
provided.
Halberstam
,
Nature of the act encouraged
. The nature of the act here—violent and lawless conduct at
the Capitol incited by President Trump’s Rally Speech—supports a finding that President Trump
“substantial[ly]” contributed to the underlying tort.
Halberstam
,
Amount and kind of assistance given
. The court in
Halberstam
observed that this was a
“significant factor,” using as an illustration a case in which the aider and abettor through his words
had “sparked” the action.
Presence at the time of the tort.
For the reasons already discussed, the fact President Trump
was not at the Capitol itself does not allow him to avoid potential aiding-and-abetting liability.
See Halberstam
,
Relation to the tortfeasor
.
Halberstam
says that an aider and abettor’s “position of
authority len[ds] greater force to his power of suggestion.”
Id.
at 484. The application of that
factor here requires little discussion. The President nevertheless pushes back, asserting that
because the tortfeasors were not known to the President, this factor cuts in his favor.
Blassingame
Trump Mot. at 37. Leaving aside that Plaintiffs have pleaded that the President did
know
about
organized militia groups,
Halberstam
makes clear that the aider and abettor need not have a
personal relationship with the tortfeasor to be in a position of authority.
Halberstam
, 705 F.2d at
484 (citing
Cobb v. Indian Springs, Inc.
,
State of mind. As to this factor, the court has found that Plaintiffs have plausibly alleged that the President was of one mind with organized groups and others to participate in violent and unlawful acts to impede the Certification. Thus, this factor is supported by more than, as the President contends, his alleged pleasure in watching news coverage of the events as they unfolded at the Capitol building. Blassingame Trump Mot. at 37.
Duration of the assistance provided. The Halberstam court considered an additional, sixth factor, the duration of the assistance provided. This factor also weighs against President Trump. True, the Rally Speech itself was relatively short in duration, but the invitation for the Rally came two weeks earlier. The duration is longer still if the court considers his tweets prior to that invitation. Importantly, even President Trump admits that his “sporadic tweets and speeches” present a “stronger argument” for “conspiracy” liability. Id. at 37–38. That duration also supports aiding-and-abetting liability.
Accordingly, the court holds that Swalwell and the Blassingame Plaintiffs have stated a claim for common law assault based on an aiding-and-abetting theory of liability.
5.
Negligence (
Swalwell
Count 9)
The last of Swalwell’s claims is negligence. Swalwell alleges that “[i]n directing a crowd
of thousands to march on the Capitol—particularly considering their violence-laden сommands—
the Defendants owed a duty of care to the Plaintiff and to everyone in the Capitol to exercise
reasonable care in directing the mob’s actions.”
Swalwell
Compl. ¶ 255. He further contends that
President Trump breached that duty by, among other things, urging rally-goers to “fight like hell.”
Id.
¶ 257. Thus, under Swalwell’s negligence claim, the President’s lack of care with his words
caused others to riot, resulting in his injuries. Importantly, such a theory is analytically distinct
from the theory that underlies Swalwell’s § 1985(1) and aiding-and-abetting theories, which rest
on the President’s
intentional
use of words to encourage violence or lawlessness.
See Harris v.
U.S. Dep’t of Veterans Affs.
, 776 F.3d 907, 916 (D.C. Cir. 2015) (observing that “intent and
negligence are regarded as mutually exclusive grounds for liability” (alterations omitted) (quoting
District of Columbia v. Chinn
,
When, as here, a plaintiff seeks to hold a defendant liable for negligence for injuries
resulting from intervening criminal acts, “heightened foreseeability factors directly into the duty
analysis because a defendant is only liable for the intervening criminal acts of another if the
criminal act is so foreseeable that a duty arises to guard against it.”
Bd. of Trustees of Univ. of
D.C. v. DiSalvo
,
Accordingly, to establish that President Trump had a duty to Swalwell to take care of the words he used in the Rally Speech, Swalwell must plead facts establishing that the President had an increased awareness of a risk of a violent assault at the Capitol. Not surprisingly, he does not meet this demanding standard. He therefore cannot advance a theory of negligence liability based on the theory that the President’s lack of care in selecting his words caused his injuries. His only viable theory is to show that President Trump acted intentionally, which he has sufficiently pleaded.
6.
The
Blassingame
Plaintiffs’ Additional “Claims”
The
Blassingame
Plaintiffs advance three counts not asserted by Swalwell: (1) directing
assault and battery (Count 1); (2) punitive damages (Count 6); and (3) civil conspiracy (Count 8).
As to the first of these unique “claims,” the court does not understand the difference, in this case,
between “directing” an assault and aiding and abetting one. They seem one and the same.
Nevertheless, the court will not dismiss Count 1; Plaintiffs may be able to clarify and refine this
claim through discovery. Count 6—punitive damages—is not a freestanding claim, but a type of
damages, so it is dismissed, without prejudice to seeking such damages, if liability is established
*110
and if appropriate. And, Count 8—civil conspiracy—is “not independently actionable” under
District of Columbia law; rather, it is a “means for establishing vicarious liability.”
See
Halberstam
,
G. At long last, the court arrives at the final matter before it: Brooks’s request for certification under the Westfall Act. Under that Act, if the Attorney General certifies that a federal employee “was acting within the scope of his office or employment at the time of the incident out of which [a] claim arose,” the employee shall be dismissed from the action and the United States substituted as the defendant. 28 U.S.C. § 2679(d)(1). Such certification and substitution do not, however, extend to an action brought against an employee for a “violation of a statute of the United States under which such action against an individual is otherwise authorized.” Id. § 2679(b)(2)(B). In this matter, the Attorney General refused to certify that Brooks was acting within the scope of his office, i.e., in his legislative capacity, when he gave his speech at the January 6 Rally. U.S. Resp. to Brooks at 1. The congressman nevertheless asks the court to make the requisite certification as to Swalwell’s tort claims. 28 U.S.C. § 2679(d)(3) (authorizing courts to certify a defendant- employee’s acts as within the scope of office or employment).
The court need not grapple with this issue. A dispute over certification under the Westfall Act does not appear to be a question regarding the court’s subject matter jurisdiction, so the court is not required to consider it before the merits. The court instead invites Brooks to file a motion to dismiss for failure to state a claim. The court is prepared to grant such motion for the same reasons it dismisses all claims against Giuliani and Trump Jr.: Brooks’s remarks on January 6th were political speech protected by the First Amendment for which he cannot be subject to liability. *111 IV. CONCLUSION AND ORDER
For the foregoing reasons, the court holds as follows with respect to each of the three actions:
Thompson v. Trump. Giuliani’s motion to dismiss is granted and the motions to dismiss of President Trump, the Oath Keepers, and Tarrio are denied.
Swalwell v. Trump. The motions to dismiss of Trump Jr. and Giuliani are granted as to all claims. The motion to dismiss as to President Trump is denied as to:
(1) the § 1985(1) claim (Count 1)
(2) the negligence per se claims (Counts 3 and 4)
(3) violation of the District of Columbia’s anti-bias law (Count 5), and (4) aiding and abetting assault (Count 8)
and granted as to:
(5) the § 1986 claim (Count 2)
(6) intentional infliction of emotional distress (Count 6) (7) negligent infliction of emotional (Count 7) distress, and (8) negligence (Count 9).
The court defers ruling on Brooks’s Westfall Act certification petition and instead invites him to file a motion to dismiss, which the court will grant.
Blassingame v. Trump . President Trump’s motion to dismiss is denied as to: (1) the § 1985(1) claim (Count 7)
(2) directing/aiding and abetting assault (Counts 1 and 2) (3) violations of public safety statutes (i.e, negligence per se) (Counts 4 and 5) and granted as to:
(4) intentional infliction of emotional distress (Count 3) (5) punitive damages (Count 6)
(6) civil conspiracy in violation of common law (Count 8). Dated: February 18, 2022 Amit P. Mehta United States District Court Judge
Notes
[1] President Reagan said on that day: To a few of us here today, this is a solemn and most momentous occasion; and yet, in the history of our Nation, it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-4-year ceremony we accept as normal is nothing less than a miracle. President Ronald W. Reagan, First Inaugural Address (Jan. 20, 1981), https://www.reaganfoundation .org/media/128614/inaguration.pdf (last visited Feb. 17, 2022).
[2] Subsequent citations to filings from these three dockets omit the case name and number. Context and/or the title of the filing should make clear to which docket a particular filing belongs.
[3] As discussed later, these Complaints make different allegations about the timing of these shouts and chants.
[4] The plaintiffs are Representatives Karen R. Bass, Stephen I. Cohen, Veronica Escobar, Pramila Jayapal, Henry C. Johnson, Jr., Marcia C. Kaptur, Barbara J. Lee, Jerrold Nadler, Maxine Waters, and Bonnie M. Watson Coleman.
[5] President Trump raises another contention under the rubric of Article III standing but misclassifies it. He insists that Swalwell and the Bass Plaintiffs cannot bring suit under § 1985(1) because such a claim “is only available to specific federal officials,” which does not include members of Congress. Thompson Trump Mot. at 16. Therefore, he says, “Plaintiffs are not of a class of individuals who have standing to bring a claim under § 1985(1).” Id. at 18 (emphasis added). This type of argument is commonly referred to as “statutory standing.” See Lexmark Int’l, Inc. v. Static
[6] Although President Trump does not contest the
Blassingame
Plaintiffs’ standing except for a cursory mention in the
one-page motion to which he attaches his memorandum, Def. Trump’s Mot. to Dismiss, ECF No. 10;
see generally
Blassingame
Trump Mot., the court nevertheless addresses it.
See Arbaugh v. Y & H Corp.
,
[7] Certain Plaintiffs seek injunctive relief in addition to damages.
See Swalwell
Compl. at 64;
Thompson
Compl. at 62.
The standing inquiry for injunctive relief is different, as it requires a plaintiff to establish a likelihood of
future
harm.
In re Navy Chaplaincy,
[8] It is understandable why the Oath Keepers interpreted the Bass Plaintiffs’ claimed injury to include an impairment of their official duties. Their Complaint states that “each of the Plaintiffs named above was hindered and impeded in the discharge of his or her official duties and suffered the deprivation of the right to be free from intimidation and threats in the discharge of his or her official duties, as explicitly protected under the Ku Klux Klan Act.” Thompson Compl. ¶ 265. That certainly sounds like an institutional injury. In any event, the Bass Plaintiffs have expressly disavowed such a theory of standing. Bass Pls.’ Omnibus Mem. of Law in Opp’n to Defs.’ Mots. to Dismiss, ECF No. 29, at 20 (“Plaintiffs, however, are not seeking damages for an impaired ability to certify the results of the election.”).
[9]
Clinton v. Jones
also involved a claim of defamation that arose while President Clinton was in office. The claim
was that “persons authorized to speak for the President publicly branded [the plaintiff] a liar by denying that the
incident had occurred.”
[10] The Court also made clear in
Clinton
, and later in
Vance v. Trump
, that the “dominant concern” for crafting broad
immunity in
Fitzgerald
“was not mere distraction but the distortion of the Executive’s ‘decisionmaking process’ with
respect to official acts that would stem from ‘worry as to the possibility of damages.’”
Vance
,
[11] The below summary is pulled, some of it verbatim, from Judge Friedrich’s decision in
United States v. Sandlin
,
No. 21-cr-88 (DLF),
[12] To be clear, the court does not mean to say that there is no conceivable circumstance in which the President would have a role in faithfully executing the laws pertaining to the Certification of the Electoral College. The court’s holding is limited to President Trump’s contention that his mere exhortation to carry out Certification duties in a particular way falls within the Take Care Clause.
[13] This observation was made as part of the Supreme Court’s rejection of the “distraction” theory as justifying absolute
immunity:
There is, no doubt, some truth to Learned Hand’s comment that a lawsuit should
be “dread[ed] . . . beyond almost anything else short of sickness and death.” We
recognize that a President, like any other official or private citizen, may become
distracted or preoccupied by pending litigation. Presidents and other officials face
a variety of demands on their time, however, some private, some political, and
some as a result of official duty. While such distractions may be vexing to those
subjected to them, they do not ordinarily implicate constitutional separation-of-
powers concerns.
Clinton
,
[14] At oral argument and in a post-hearing filing, Plaintiffs proposed that the court could rely on an Office of Legal
Counsel Opinion from 1982, Payment of Expenses Associated with Travel by the President and Vice President,
[15] That said, the court would be remiss in not pointing out that there is at least some historical support for Plaintiffs’ position. In Fitzgerald , the Court found persuasive Justice Story’s analysis on presidential immunity. 457 U.S. at 749 (quoting 3 J. S TORY , C OMMENTARIES OF THE C ONSTITUTION OF THE U NITED S TATES § 1563, at 418–19 (1st ed. 1833)). Justice Story also commented on the open question of “whether, under the constitution, any acts are impeachable, except such, as are committed under colour of office.” 2 Commentaries § 799. In other words, does the constitutional remedy of impeachment extend to official acts only, or can it be based on unofficial conduct? In addressing this issue, Justice Story did not formulate a firm opinion, but he did make the following observation: In the argument upon Blount’s impeachment, it was pressed with great earnestness, that there is not a syllable in the constitution, which confines impeachments to official acts, and it is against the plainest dictates of common sense, that such restraint should be imposed upon it. Suppose a judge should countenance, or aid insurgents in a meditated conspiracy or insurrection against the government. This is not a judicial act ; and yet it ought certainly to be impeachable.
[16] If Swalwell contends that President Trump is liable under § 1986 because he himself is an alleged coconspirator and had the power to stop the conspiracy, the court is dubious that § 1986 can sustain such a construction. If accepted, it would mean that any coconspirator of a § 1985 conspiracy with some degree of authority is likewise liable under § 1986. The court is skeptical that Congress intended such an interpretаtion. In any event, Swalwell does not specifically articulate a reading of § 1986 that would rest on the President’s failure to act before the rally-goers stormed the Capitol. See Swalwell Compl. ¶ 90.
[17] In his Blassingame motion, President Trump makes a further argument. He contends that the Impeachment Judgment Clause’s use of the word “Indictment” to start the series “Indictment, Trial, Judgment and Punishment, according to Law” underscores that “an individual convicted is only potentially liable for follow on criminal charges brought by the government rather than a civil suit on the same issues.” Blassingame Trump Mot. at 21 (emphasis added). The court already has rejected the contention that the Impeachment Judgment Clause implicitly forecloses further action against an acquitted individual. President Trump does not, however, make the alternative argument that, even if an acquitted official can be subject to some judicial process, the word “Indictment” implies that such process can only be criminal and not civil in nature. See id. at 21–22. The court therefore does not address that contention.
[18] President Trump does not advance these first two arguments against the Blassingame Plaintiffs, and because statutory standing is not jurisdictional, see Lexmark Int’l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 125–28 (2014), the court treats them as forfeited as to the Blassingame Plaintiffs.
[19] According to a Westlaw search, the Supreme Court has cited various editions of Bouvier’s
Law Dictionary
over
50 times, most recently in 2019 in
Peter v. NantKwest, Inc.
,
[20] The Bass Plaintiffs also convincingly cite legislative history to buttress their argument that members of Congress are within the reach of § 1985(1). Thompson Pls.’ Opp’n at 22–27. The court need not recite that legislative history here because the meaning of the words found in § 1985(1) plainly encompasses members of Congress.
[21] President Trump does cite a law review article for the proposition that “in common law, an office of trust or profit referred exclusively to those in the employ in the executive, judiciary, or the church,” and did not include legislators. Thompson Trump Mot. at 17–18 (citing Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify , 32 Q UINNIPIAC L. R EV . 209, 278–79 (2014)). But this is just another argument to tie § 1985(1)’s terms to similar words in the Constitution. The cited law review article was reviewing the historical underpinning of the Impeachment Clause, which states that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Art. I, § 3, cl. 7 (emphasis added); see also Cassady, supra , at 277 (“This interpretation—that legislators are not officers who hold offices of ‘honor, Trust or Profit’—is buttressed by the text, history, and structure of the Constitution.”). But for the reasons already discussed, the meaning of the terms in § 1985(1) is not bound by the meaning of similar terms in the Constitution.
[22] The Blassingame Plaintiffs do not allege that the conspiracy’s purpose was to prevent them from discharging their duties, but they do allege that they were injured as a result of the conspiracy to disrupt the Certification of the Electoral College vote. Blassingame Compl. ¶ 226.
[23] In this section, the court does not include citations to the Complaints to support these facts to avoid cluttering up the text. There is no dispute that the Complaints make these allegations.
[24] A full transcript of the President’s remarks can be found on the Thompson docket. Def. Oath Keepers’ Mot. for Leave to File Am., Suppl. Ex. in Supp. of the Oath Keepers’ Mot. to Dismiss, ECF No. 57, Ex. 2, ECF No. 57-2.
[25] There is a conflict between two Complaints as to when these shouts and chants took place. According to the Bass Plaintiffs, the chants to lay siege to the Capitol took place during the President’s speech and shouts to fight for the President took place after he concluded speaking. Thompson Compl. ¶ 88. The Blassingame Plaintiffs say just the opposite. Their version is that the chants regarding the Capitol took place after the President concluded his remarks and the shouts to fight for him occurred during his speech. Blassingame Compl. ¶ 61. The court does not attempt to resolve that factual conflict here.
[26] With respect to the President’s post–Rally Speech conduct, the court for present purposes considers only those acts that plausibly were undertaken in his unofficial capacity. Circuit precedent suggests that immunized action (or inaction) cannot be considered. See Banneker Ventures , 798 F.3d at 1145 (instructing trial court on remand to “evaluate whether the actions that it concludes would not be immunized , taken together, state a claim against Graham for tortious interference or civil conspiracy” (emphasis added)).
[27] Swalwell also includes in his Complaint a photograph of Trump Jr. from May 2019 that purports to show him wearing a t-shirt bearing the symbol of a militia group known as the Three Percenters. Swalwell Compl. ¶ 96. The Three Percenters are among the groups alleged to have stormed the Capitol. But this effort to tie Trump Jr. to the alleged conspiracy is tenuous, at best.
[28] Numerous states passed criminal syndicalism laws in the early part of the 20th century “with the purpose of making it illegal for individuals or groups to advocate radical political and economic changes by criminal or violent means.” Dale Mineshima-Lowe, Criminal Syndicalism Laws , T HE F IRST A MENDMENT E NCYCLOPEDIA , https://www.mtsu.edu /first-amendment/article/942/criminal-syndicalism-laws (last visited Feb. 8, 2022).
[29] The D.C. Circuit addressed
Brandenburg
in
National Organization for Women v. Operation Rescue
, but in the
context of evaluating the terms of an injunction, not applied to any particular speech.
[30] The Rotunda and Nowak treatise’s three-factor test has been called into question insofar as it requires inquiry into
whether the speaker “objectively encouraged and urged and provoked imminent action.” The Sixth Circuit has
declined to wholly embrace such an “objective” element, except insofar as the
Brandenburg
inquiry must focus on
“the words used by the speaker . . . , not how they may be heard by a listener.”
Nwanguma v. Trump
,
[31] The court has considered the Rally Speech in its entirety. See supra note 24 . The recitation below summarizes those remarks as they were made chronologically, and it omits citations for ease of reading.
[32] The court takes no position on whether the subjective reaction of a listener might have some relevance to the inquiry.
[33] President Trump additionally has argued that, if the court were to hold that he could be potentially liable under
§ 1985(1) for his speech, such an interpretation would raise overbreadth and void-for-vagueness concerns.
Thompson
Trump Mot. at 21–22. But such challenges make little sense, as the President cannot seriously contend that § 1985(1)
either sweeps in too much protected speech (an overbreadth challenge) or does not provide fair notice of what it
prohibits (void for vagueness). In any event, the President does not develop either argument, devoting only a half-
page to them.
See id.
The court therefore declines to address them any more than it has.
See United States v. Zannino
,
[34] The court recognizes that calling these claims “negligence per se” is a bit of a misnomer because both depend on
knowing and willful violations of the criminal law. Nevertheless, District of Columbia law does recognize that
violations of certain types of criminal statutes may give rise to civil liability under the rubric of “negligence
per se
” if
the statute is intended to promote safety.
See McCracken v. Walls-Kaufman
,
[35] District of Columbia law seems to recognize that a qualifying public-safety criminal statute itself may create a duty,
in some cases to the public at large.
See, e.g.
,
Zhou v. Jennifer Mall Restaurant, Inc.
,
[36] In his reply brief, President Trump recharacterizes Swalwell’s anti-bias claim as alleging that because the President committed “all of the other torts” alleged in the Complaint and “because he committed these torts with prejudice, President Trump is liable under § 22-3704.” Reply in Supp. of Defs. Trump & Trump Jr.’s Mot. to Dismiss, ECF No. 44 [hereinafter Swalwell Trump Reply], at 29. But that is not what Swalwell has alleged, nor what the statute permits as a ground for recovery. The “designated act” must be “a criminal act,” not a mere tort, D.C. Code § 22-3701(2), and Swalwell accuses the President of predicate criminal, not tortious, acts, Swalwell Compl. ¶¶ 213–214.
[37] In the penultimate line of his reply brief, President Trump asserts: “Even still, calling someone a radical left Democrat does not amount to prejudice.” Swalwell Trump Reply at 29. This seems to be an argument challenging the sufficiency of Swalwell’s pleading of the element of prejudice. Because it is raised for the first time in the reply brief in a single, unadorned sentence, the court declines to consider it.
[38] The District of Columbia Court of Appeals has moved away from the physical “zone of danger” requirement for
some NIED claims, but that exception is limited to cases in which the defendant had a relationship with the plaintiff,
or had undertaken obligations to the plaintiff, of a nature that necessarily implicates the plaintiff’s well-being.
See Sibley v. St. Albans Sch.
,
[39] President Trump contends for the first time in his Swalwell reply brief that aiding and abetting a tort is not a recognized cause of action under District of Columbia law. Swalwell Trump Reply at 25–26. That argument comes too late, and the court declines to consider it.