Transcription
Hi everyone, Harry here to talk about a very important ruling in cases growing out of the January 6th riots. This is a real back to the future moment, back in that it, uh, gets right at the heart of what happened on January 6th and lawsuits that were filed many moons ago by, in particular, police officers and members of Congress, such as Eric Swallwell, who were literally injured because of the marauders and their assaults on the Capitol.
But it's back to the future because you read this opinion and it's really clear this litigation is going to be going on a long, long time. All right, let's set, uh, the basic parameters. You, at the time, it was big news, and it's only because of the onslaught of Trump outrages and the passage of time that this seems like distant memory now. But members of Congress, and especially officers who were hurt, say that harm was caused approximately, to use the legal term, by Trump in whipping up the, uh, crowd of insurrectionists or would-be insurrectionists to a frenzy. Um, they brought cases, and they had standing pretty clearly because they were injured. So, this isn't just a matter of Congress saying, "Oh, you actually, um, interfered with the, um, free transfer of power in the election." This is like, "I got hurt. Here are my injuries. Here are my doctor's bills because these marauders just completely stormed the place."
Okay, it has gone up and down already once, and it's going to be going up and down again. But the basic issues are immunity is the big one. And the judge here, uh, Judge Meta in the DC District Court, applied the principles of Trump, uh, versus the United States, the infamous immunity opinion from the Supreme Court, and asked, is this the kind of act that counts as official actions? So that the Supreme Court would say, for example, the criminal law, it's beyond the reach of the criminal law to go after a president. So when he's up there and whipping the crowd into a frenzy, and some of the things he's saying and doing, is that him acting officially as a president? And Meta said no, it's not him acting officially as a president, it's him acting as a basic candidate. And, uh, it falls outside the outer perimeter of a president's responsibilities, the, the president as an office holder.
Now, remember, this may be the most controversial aspect of the Supreme Court's holding in Trump versus United States, which is official acts cannot even be introduced as evidence at trial. So, there are different kinds in this 79-page scholarly opinion, treatment of different kinds of facts, and maybe that, for instance, the back and forth of phone calls from members of Congress panicking to Meadows and Trump on the actual day of the riots, January 6th. That seems like it might be official, so has to be taken out of the actual proof. But basically, Meta is saying the, the core, um, allegations remain, and they aren't defeated by immunity. Uh, and, um, that's that. And the efforts to, uh, reconsider, which Trump also did. He's, you know, this is every motion in the book, delay as much as possible, um, are denied.
But now Trump has also made a First Amendment argument to Meta, and Meta has denied it, but he certified it for interlocutory review. In other words, it's often up to a district court whether to stop the music and let the loser of a motion go up to the Court of Appeals and, uh, you know, look at a ruling that's just been made. It has to do with how influential it's going to be, how efficient it is to try to take care of it now as against the normal principle, one stage at a time. And so he's given Trump leave. And Trump certainly will take that leave to press his First Amendment claim. This is just me, uh, doing, uh, free speech and you can't, um, recover for that. That I think, uh, ought to be a loser. As Meta makes clear, you, free speech doesn't cover. I mean, it's a sort, it's a textbook bad First Amendment claim. It's so much like the famous paradigm of yelling fire in a, uh, in a theater. It doesn't matter that words came out of his mouth if they, in fact, approximately led to this very harm that the, uh, plaintiffs are complaining about, and that Trump wouldn't have had a right to do, First Amendment or not. So that's going to, however, go up now to the Court of Appeals in an interlocutory way before anything else.
Then the government came in. This was not well noticed at the time, but they, the government came in, meaning Trump is the government. The government is Trump. So, it's no surprise. It would have been a, um, very questionable act by a normal, honest Department of Justice. But they said, we want to, uh, take over this case because, and it's very similar to the first point of an official action. This is official action on his part, and therefore we can come in under the Westfall Act. Do you remember these principles with E. Jean Carroll and the like? It would basically mean we now stand in his shoes, and by the way, we move to dismiss the case because it's the kind of conduct that the United States has not waived its sovereign immunity for. Uh, and then there are a few little sort of cleanup, uh, motions that are, that are part and parcel of again, a very long ruling. Um, but, uh, it's now the ruling has everything to do with the big cases we've been hearing about over the last several years as the fallout from the whole historic ugly debacle ensues. And so that's Trump versus US, and also an important decision by the DC Circuit in the Blassingame, uh, case. But it's about sort of similar principles.
So, um, we, I could sort of plaude through all the particulars, but I think we can cut to the chase to see it in broad strokes. And the number one broad stroke is this case is very much alive. And that means Eric Swallwell and the others, members of Congress, and especially the very sympathetic, uh, police officers who, and Trump set in motion a whirlwind that really, uh, fell on their heads, injured some of them terribly. Uh, it all goes forward. On the other hand, when you put it all together and look at the different aspects, including the one that he's just given interlocutory review for, the First Amendment question, we're talking literally years. This is the kind of lawsuit that you see. I, I clerked on the DC Circuit, the court above the, the district court, and definitely big complicated cases could go a decade or more from complaint to resolution. So, this is going to be something that Trump will continue to fight. I think the Department of Justice, if there's a change in administration, that'll have huge implications here because any responsible Department of Justice would not move automatically to protect him.
And here's the bottom line. Um, the case is complicated, labyrinthine, fated to take years to resolve, but with the Supreme Court having taken the criminal conduct out of the picture, and, and of course, with Trump's election, it remains a really viable, um, vehicle to prove, in as much as lawsuits prove things, that Trump acted badly, unofficially, in a way that caused the riots and that led to damage. All of those principles are not only, uh, important for the individuals who have doctor's bills and other injuries to try to remedy, but the country, to the extent that legal decisions have a role in settling social disputes, what happened on January 6th, what did it cause, etc. Trump keeps saying nothing, all peaceable, etc. This lawsuit, when it is finished with its long, tortuous pace, could well be a really important entry in the annals of history. That, um, shows what in fact did happen, which is that a president went completely outside of his official role and totally worked people up to storm the Capitol and, uh, impose all kinds of damage on officers and others and be, and has to be liable for it. So, don't hold your breath because we'll die of suffocation long before that. But this is a case to remember, think about, understand is out there when we worry that Trump is somehow getting a complete pass on his perfidious acts of January 6th, 2021. Talk to you later.
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