Trump told crowd to ‘fight like hell’ before riot. Can he be sued?

A federal appeals court on Wednesday debated whether Donald Trump can be forced to pay damages for his role in the Jan. 6, 2021, riot at the U.S. Capitol to lawmakers and police officers injured by the mob.

While they struggled with the line between protected speechmaking and actionable incitement, all three judges on the D.C. Circuit Court of Appeals indicated that a line exists and Trump may have crossed it.

One judge, a Trump appointee who served in his administration, said the former president potentially instigated violence when he told his supporters the election was stolen and urged them to march on the Capitol and “fight like hell.”

The “arguable incitement,” Judge Gregory G. Katsas said, “makes this a hard case.”

Two Capitol Police officers and 11 House Democrats are suing Trump under a statute intended to combat Ku Klux Klan violence after the Civil War. The 150-year-old law bars the use of force, threats or intimidation to prevent government officials from carrying out their duties, and allows anyone injured by such actions to collect damages.

The plaintiffs say Trump, along with members of the far-right Proud Boys and Oath Keepers, conspired to prevent lawmakers from certifying the 2020 election results, causing “psychological and, in some cases, physical injuries.”

Katsas rejected an argument from Trump’s attorneys that allowing this lawsuit would leave future presidents afraid to speak about important issues for fear of being sued.

“How many cases will there be with a colorable claim of incitement against the president?” the judge asked. “It seems like that is not going to hamstring the president in his day-to-day job.”

But Katsas and other judges also expressed concern about the lack of a clear line between expressing disagreement with another branch of government and interfering in its work.

“One of the areas I’m concerned about is we have a history in this country of protest where they may start out as peaceful protests, but they turn violent, either because of opposing points of view or police actions,” said Judge Judith W. Rogers, a nominee of President Bill Clinton.

Chief Judge Sri Srinivasan, an Obama appointee, said Trump could not be held liable because violence occurred — “it has to turn on what the president in fact said or did.” But he also noted that the allegations “go beyond the Jan. 6 speech,” to include Trump’s calls to state election officials, his tweets, and his role in setting up the rally.

Katsas said that Trump’s speech alone is “ambiguous,” but “if you minimize the words on the page and maximize the context,” Trump’s conduct “looks maybe dangerous.”

Jesse Binnall, an attorney for Trump, said all of the former president’s actions were part of his use of the “bully pulpit” to address issues of “public concern … a critical function of the presidency.”

Even if the context was purely political, Binnall said, “You cannot separate the governance from reelection. If the president wants reelection, it’s so he can continue to govern.”

Attorney Joseph M. Sellers, representing the lawmakers and officers, said Trump was not entitled to the protections of a system he tried to upend.

“It’s inconceivable that the president can avail himself of immunity that derives from the same separation of powers that his conduct thwarted,” Sellers said. “You can’t have it both ways.”

While the president was “very artful” in not explicitly calling for violence, Sellers said, “he created a powder keg … and then he ignited it.”

Alan Rozenshtein, a professor at the University of Minnesota Law School, said Katsas, “who is quite conservative, was pretty explicit” in rejecting Trump’s argument of absolute immunity for presidential speech on any public issue. He predicted the panel would “deny immunity on this pretty narrow but ultimately pretty crazy fact pattern.”

U.S. District Judge Amit P. Mehta in February found that Trump’s statements on and before Jan. 6 could be interpreted as “an implicit call for imminent violence or lawlessness,” making him potentially part of a conspiracy to disrupt the vote count.

“He knew the respective roles of the conspirators: his was to encourage the use of force, intimidation, or threats to thwart the Certification from proceeding, and organized groups such as the Proud Boys and the Oath Keepers would carry out the required acts,” the judge wrote. “The President thus plausibly would have known that a call for violence would be carried out by militia groups and other supporters.”

Attorneys for Trump appealed, arguing that even in “difficult” cases there is “ironclad presidential immunity as it relates to speechmaking,” and therefore “no further inquiry into President Trump’s motives is permitted.”

A separate D.C. court is considering whether Trump was acting as president when he denied raping a woman in a department store dressing room, which would protect him from a defamation suit brought by his alleged victim.

A bipartisan group of former White House and Justice Department officials asked the court to rule against Trump, writing that this is a “rare but clear circumstance in which a President broke the law while acting well beyond any official capacity.” Forty former diplomats and foreign policy officials likewise told the court that Trump “demonstrably undermined the United States’ commitment to democracy at home and abroad.”

Mehta recently presided over an eight-week trial where Oath Keepers founder Stewart Rhodes and a deputy were found guilty of engaging in a seditious conspiracy to use force to keep President Biden from taking office. Three other Oath Keepers were found guilty of blocking lawmakers from certifying the election result. A second Oath Keepers trial started with jury selection this week; the longtime leader of the Proud Boys and other group leaders go to trial on similar charges in coming weeks.

Trump’s actions on and around Jan. 6 are also under investigation by the Justice Department; special counsel Jack Smith this week subpoenaed officials in Arizona, Michigan and Wisconsin for communications with Trump.

Katsas raised the prospect of criminal charges in court Wednesday, asking Trump’s attorneys whether immunity would apply.

“The attractiveness of absolute immunity in the civil context might depend on the number of other remedies available,” Katsas said. “Is criminal a possibility?”

Binnall declined to speculate on that issue.