Democratic members of Congress have rejected claims by former President Donald Trump and his personal attorney Rudy Giuliani that they can avoid lawsuits concerning the Jan. 6 attack on the U.S. Capitol thanks to the First Amendment or "absolute immunity" for presidents.
The response came Thursday in a memo opposing the defendants' motion to dismiss, which argued that the House members did not have standing to sue under a little-used provision of the Ku Klux Klan Act, which creates a private right of action when people obstruct federal officials.
The defendants, including the right-wing militia group Oath Keepers, claimed that only the entire institution of the U.S. House of Representatives would have standing, not a group of lawmakers suing in their individual capacities.
Trump, Giuliani and others have asserted that the First Amendment protects their statements, such as Giuliani telling the crowd at the White House rally on Jan. 6, "Let's have trial by combat." Trump also has asserted "absolute immunity" against suits over the riot.
"Waging a battle on a coequal branch of government and inciting people to riot at the Capitol are both actions which fall well outside any remotely legitimate duties of a president," Sellers told Law360 in an interview Friday.
The lawmakers' memo sought to swat away the defendants' claims and keep the case in court.
"None of their arguments shield them from accountability for the assault on Congress they instigated and facilitated," the Democrats said. "The First Amendment does not protect the military-style incursion into the Capitol led by the Oath Keepers; nor does it shield Trump and Giuliani's incendiary remarks, which aroused and mobilized the assembled crowd with the purpose, and having the effect, of violently disrupting official proceedings of Congress."
The lawmakers challenged the defendants' claim that their lawsuit presented insufficient evidence of a conspiracy.
The complaint "meticulously documents a conspiracy to prevent Congress from certifying the results of the 2020 election," they said. "The insurrection could not have occurred if Trump and Giuliani had not engaged in a months-long misinformation campaign to convince Trump's supporters that the election had been illegally stolen."
"Usually, with conspiracies, they're behind closed doors," Sellers added in the interview. "So much of this seems to have been carried out in the broad daylight through social media, so we have a really robust record."
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Sellers expressed confidence in the case.
"I think we've got very strong arguments," he said in the interview. "I'm optimistic we're going to defeat the motion to dismiss, but ultimately, it's up to the court."
He said he expects the defendants to file reply briefs before the court likely holds a hearing, perhaps this fall, and delivers a ruling on the motion to dismiss, which could come late this year depending on the court docket.
Surviving the motion to dismiss would open the door for discovery, which the lawmakers hope will provide more evidence to buttress their conspiracy allegations.
The end goal is a jury trial for accountability, Sellers said.
"We'd like to see a jury find that each of the defendants engaged in violations of this Ku Klux Klan Act [and determine whether the lawmakers] should be awarded damages and how much," he said.
Sellers said the lawmakers would probably seek default judgment against several defendants who have been served but have not responded before a deadline, including the Proud Boys and Warboys extremist groups and their leader, Enrique Tarrio.
The lawmakers' suit was first filed in February by Homeland Security Committee Chairman Rep. Bennie Thompson, D-Miss. On Thursday, Speaker Nancy Pelosi, D-Calif., tapped Thompson to chair a select committee investigating the Jan. 6 attack.
Thompson has been joined in the suit by fellow Democratic Reps. Karen Bass, Barbara Lee and Maxine Waters of California, Steve Cohen of Tennessee, Bonnie Watson Coleman of New Jersey, Veronica Escobar of Texas, Hank Johnson of Georgia, Marcy Kaptur of Ohio, Jerry Nadler of New York and Pramila Jayapal of Washington state.
The plaintiffs include many heavyweights of the House. Bass recently led the Congressional Black Caucus, Nadler chairs the Judiciary Committee, Jayapal helms the Progressive Caucus and Waters chairs the Financial Services Committee.
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Thompson and the other lawmakers are represented by Janette McCarthy-Wallace, Anthony P. Ashton and Anna Kathryn Barnes of the NAACP Office of General Counsel, Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC and Robert B. McDuff of the Mississippi Center for Justice.
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