Impeachment redux

[Sue U]

Chuck Rosenberg and Lawrence O’Donnell had a little convo tonight about the potential for civil lawsuits against Trump related to the insurrection he incited. Rosenberg was bullish on the prospect.

Every referring attorney tells you their case is a slam dunk. Neither of these guys has ever run a personal injury case. There is only one narrow path to a verdict and innumerable ways to be knocked out before even getting to trial, let alone convincing a jury. I know everyone wants to "get" Trump, but the better case for Capitol police officers may actually be against their employer for putting them in circumstances that would almost certainly result in harm. It might be easier to get over the workers comp bar than prove proximate cause/foreseeability as to Trump.

[Big RR]

While I agree with you Sue (and recognize you know a lot more about PI than I do), I do think deposing Trump could potentially provide a lot of things that could be used against him at trial (ditto for utting him on the witness stand). Face it, this guy is the worst witness there could be for his side--a guy who thinks he knows everything and will not take the advice of his counsel nor even try to control himself. I'd pay just to watch.

[BoSoxGal]

Rosenberg discussed it more from the perspective of the likelihood that Trump would settle rather than bear the costs and optics burdens of extended litigation.

[Big RR]

Somehow I doubt he would, and people loudly claiming on the internet and news shows that any settlement is an admission of guilt could probably push him away from settlement. It depends what those who are suing him want--a settlement or to embarass him. I'd contribute to the latter.

[BoSoxGal]

Leading House Democrat sues Donald Trump under a post-Civil War law for conspiracy to incite US Capitol riot

(CNN) — Former President Donald Trump and attorney Rudy Giuliani are being accused of conspiring with the far-right groups Proud Boys and Oath Keepers to incite the January 6 insurrection in a civil lawsuit filed Tuesday in federal court by the Democratic chairman of the House Homeland Security Committee that cites a post-Civil War law designed to combat violence and intimidation by the Ku Klux Klan.

The lawsuit, filed by Mississippi Democratic Rep. Bennie Thompson in his personal capacity, is the first civil action filed against the former President related to the attack at the US Capitol and comes days after the Senate acquitted Trump in his impeachment trial.
This is Trump's heaping list of legal problems post-impeachment
If it proceeds, it would mean the former President and others would be subject to discovery and depositions, potentially exposing details and evidence that weren't released during the Senate impeachment trial.

RELATED: This is Trump's heaping list of legal problems post-impeachment
Thompson points to Trump's words and tweets in the months leading up to the insurrection to accuse Trump and Giuliani of mobilizing and preparing their supporters for an attack to prevent Congress from certifying the 2020 election results on January 6.

The lawsuit cites a scarcely used federal statute passed after the Civil War that was intended to combat violence from the Ku Klux Klan; it allows civil actions to be brought against people who use "force, intimidation, or threat" to prevent anyone from upholding the duties of their office.

The NAACP is backing the lawsuit and helping to represent Thompson in court.

Some of his followers are being sought by the FBI. It's not stopping the leader of the Oath Keepers.
"As part of this unified plan to prevent the counting of Electoral College votes," the lawsuit states, "Defendants Proud Boys and Oath Keepers, through their leadership, acted in concert to spearhead the assault on the Capitol while the angry mob that Defendants Trump and Giuliani incited descended on the Capitol. The carefully orchestrated series of events that unfolded at the Save America rally and the storming of the Capitol was no accident or coincidence. It was the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College."

READ: Former President Donald Trump's January 6 speech
The former President and many Republicans argued the impeachment trial was unconstitutional because he is no longer in office. As such, Thompson notes Senate Minority Leader Mitch McConnell's speech Saturday where the Kentucky Republican seemed to encourage litigation against Trump.

"We have a criminal justice system in this country. We have civil litigation," McConnell said after voting to acquit Trump. "And former presidents are not immune from being accountable by either one."

CNN has reached out to attorneys for Trump and Giuliani for comment on this lawsuit.

House Speaker Nancy Pelosi has been briefed on the lawsuit, a source tells CNN.

McConnell blames Trump for riot, but voted to acquit anyway
McConnell blames Trump for riot, but voted to acquit anyway 20:27

Says Trump's words spurred the riots


Thompson's lawsuit ties Trump's repeated refusal to accept the election results in the weeks after November 3 to the threats of violence against elected officials like Michigan Secretary of State Jocelyn Benson, accusing Trump of endorsing the threats rather than denouncing them. The lawsuit also alleges that Trump's refusal to directly condemn the Proud Boys during the first Presidential debate in September encouraged their violent plans leading up to January 6.

The lawsuit links the hours-long standoff at the Capitol directly to Trump's rally earlier in the day where the former President told his supporters, "...if you don't fight like hell, you're not going to have a country anymore."

READ: Democrat's lawsuit against Donald Trump over US Capitol attack
Trump also said, "You have to show strength, and you have to be strong."

Giuliani, the lawsuit alleges, also riled up the crowd by continuing to talk about unfounded allegations of widespread voter fraud and telling supporters on January 6: "Let's have trial by combat."

The lawsuit accuses Trump of delaying the delivery of his speech to the crowd at the Ellipse on January 6 as a way to give the Proud Boys time to get to the Capitol and overcome the police presence there, though there is no evidence provided that Trump's speech was delayed or that any delay was intentional.

In addition to Trump and Giuliani, the lawsuit names the Proud Boys and Oath Keepers as defendants.

Several members of these far-right groups have been charged for their involvement in the riot. The Justice Department has charged more than a dozen Proud Boys so far for storming the Capitol, and recently brought conspiracy charges against a group of five people associated with the group. DOJ also indicted three members of the Oath Keepers in late January, including one member, Jessica Watkins, whose attorney told the judge last week that she believed she was following directions from Trump.

KKK statute


The legal underpinnings of the lawsuit could face an uphill battle in court, since the KKK statute has not been widely used.

"It was specifically meant to provide federal civil remedies for federal officers who were prevented from performing their duties by two or more individuals, whether federal marshals in the post-Civil War South, federal judges in un-reconstructed lower courts; or federal legislators," University of Texas Law professor and Supreme Court analyst Stephen Vladeck explained.

"It's not at all hard to see how that provision maps onto what happened on January 6 -- where, quite obviously, two or more people conspired to prevent the Joint Session of Congress from performing its constitutional function of certifying President Biden's Electoral College victory. The harder question is whether Trump himself can be connected to that conspiracy," Vladeck said.

Attorney Joseph Sellers, who is representing Thompson, said that the specific purpose of the statute was to provide a remedy against efforts to interfere with Congress' duties.

"The fact that there's very little precedent [involving this section of the statute] is a reflection of how extraordinary the events were that give rise to this lawsuit," Sellers said.

Other members of Congress, including Democratic Reps. Hank Johnson of Georgia and Bonnie Watson Coleman of New Jersey intend to join the lawsuit as plaintiffs, according to a statement that accompanied the lawsuit.

"While the majority of Republicans in the Senate abdicated their responsibility to hold the President accountable, we must hold him accountable for the insurrection that he so blatantly planned," Thompson said in the statement. "Failure to do so will only invite this type of authoritarianism for the anti-democratic forces on the far right that are so intent on destroying our country."

This story has been updated with additional details of the lawsuit.

[Big RR]

we must hold him accountable for the insurrection that he so blatantly planned...Failure to do so will only invite this type of authoritarianism for the anti-democratic forces on the far right that are so intent on destroying our country.

While I agree, letting him buy his way out by settling without admitting any responsibility would not achieve that end.

[Sue U]

While I agree with you Sue (and recognize you know a lot more about PI than I do), I do think deposing Trump could potentially provide a lot of things that could be used against him at trial (ditto for utting him on the witness stand). Face it, this guy is the worst witness there could be for his side--a guy who thinks he knows everything and will not take the advice of his counsel nor even try to control himself. I'd pay just to watch.

Of course Trump is a terrible witness, which is why I don't think you'd ever even get him in a dep, let alone on the stand at trial. Realistically, what testimony could he provide that would have any bearing on liability or damages? There is no dispute as to the facts of his conduct and statements, and if I were his lawyer I'd so stipulate since it's all on videotape anyway, and it would keep him out of a dep. Whether or not he "meant" to incite the crowd is virtually irrelevant; the only questions are a) whether his acts were negligent and b) did those acts in fact cause the mob to storm the Capitol and ultimately result in the death and injury claimed. On these issues, the defense (at a minimum) would be 1) making his stupid speech about the "stolen election" was not an act of negligence; 2) others planned the attack on the Capitol before the Trump rally and used the gathering as their jumping-off point; 3) others actually instigated the mob to attack the building itself omce they were at the Capitol; and 4) the rioters are responsible for their own actions. Lose on any one of those -- either on a pre-trial motion or at trial -- and you're out.

Rosenberg discussed it more from the perspective of the likelihood that Trump would settle rather than bear the costs and optics burdens of extended litigation.

I highly doubt there would be any optics at all. Until there is a trial, a lawsuit is, frankly, mostly just a lot of paperwork. Not sexy, not news-making. Not even lawyers go to motion "hearings" anymore (except for argument on dispositive rulings); everything else is done "on the papers." And considering the likelihood of Trump actually paying his defense lawyers at all (there's probably some liability insurance policy that will cover his defense costs anyway), there is no burden to him of "extended litigation." He likes extended litigation precisely because it causes those suing him to incur a lot of costs up front with no guarantee of recovery. Believe me, the burden of extended litigation is a lot harder on plaintiffs seeking compensation than it is for defendants who have the assets.

[Big RR]

if I were his lawyer I'd so stipulate since it's all on videotape anyway, and it would keep him out of a dep.

True, bu do you think a man with his big ego would listen to his counsel? I don't, and think he could be baited into "telling his side". He'd think he's the greatest witness since the beginning of time, and he'd likely insist on testifying at trial (the defense wouldn't oppose this). Face it, this guy would never take anyone's advice (in his mind he's the expert on everything), and I would guess no reputable attorney would represent him--only publicity whores who would let him call the shots. That's what it looks like happened at the impeachment hearings.

FWIW, I have friends who practice criminal defense law, and have heard stories about how some (very few) clients insisted on testfying and sunk themselves; I see the same with Trump.

As for your two points the plaintiff would need to prove and the 4 points for the defense, it would appear everything there includes some fact finding which should go to a jury during trial; do you think it's likely the action would be dismissed before trial?

[Sue U]

if I were his lawyer I'd so stipulate since it's all on videotape anyway, and it would keep him out of a dep.

True, bu do you think a man with his big ego would listen to his counsel? I don't, and think he could be baited into "telling his side". He'd think he's the greatest witness since the beginning of time, and he'd likely insist on testifying at trial (the defense wouldn't oppose this). Face it, this guy would never take anyone's advice (in his mind he's the expert on everything), and I would guess no reputable attorney would represent him--only publicity whores who would let him call the shots. That's what it looks like happened at the impeachment hearings.

FWIW, I have friends who practice criminal defense law, and have heard stories about how some (very few) clients insisted on testfying and sunk themselves; I see the same with Trump.

And yet for the impeachment trial, Trump neither provided written testimony nor appeared to testify (as he was invited to do by the House managers).

As for your two points the plaintiff would need to prove and the 4 points for the defense, it would appear everything there includes some fact finding which should go to a jury during trial; do you think it's likely the action would be dismissed before trial?

I think there's substantially less than a 50-50 chance of actually making it to trial. Because we are talking about speech, not physical acts or omissions that lead to injury like a Rube Goldberg machine, I think there's a high probability that you lose on a threshold motion to dismiss for failure to state a claim. Although I'm willing to be persuaded, I'm not sure there's an actual civil cause of action for "negligent speech." Is carelessness in how one talks really something that should even be actionable? And even if it were, as Cardozo noted in Palsgraf (I can't believe we're coming back to this!) "negligence in the air" is insufficient. The issues of proximate cause, reasonable foreseeability and intervening superseding cause -- all of which can be decided as questions of law rather than fact -- can give a judge ample grounds to toss the case.

ETA:
Legal merits of the claim aside, I think there's a strong impetus for a judge to dismiss on the basis of "not having this fucking circus in my courtroom."

ETFA:
Interesting Yale Law Review note about tort liability for negligent speech (from 1984!), but I don't have the time to Sheaprdize the citations to see if there has been any actual development of the field. Again, I am willing to be persuaded.

[Big RR]

I'll take a look at it; thanks. And thaks for your analysis as well.t

As for his not testifying at Congress, I think he was convinced it would make him look weak and subservient to the Senate, and he was destined to win. Would the same thing happen in a trial? Perhaps, but I'm not so sure; he saw how his silence (in his mind) let people like McConnell toe the party line and then lambast him in the press (although his silence as to that is a bit puzzling). Maybe he couldn't be baited into testifying, but it would take a lot to keep him silent. He's way too much of an ass to be sure.

[Sue U]

Another thought about civil liability: For each injured person, there is one or more other actors who actually physically caused the injury. To tag Trump with liability, you'd have to identify and bring into the case as additional defendants at least one of those who attacked each injured person and have them testify that they engaged in that violence because that's what they believed Trump had told them to do. If those individual actors have not been or cannot be identified for a particular plaintiff, then that case gets dismissed for failing to prove causation. If they are identified, Trump's lawyer will depose them and ask them to specify exactly which of his statements directed them to harm Capitol police officers (or whoever). The lawyer will go through Trump's speech(es) line by line with them and ask, "Is this what directed you do it?" After they all admit that Trump didn't literally urge them to assault anyone, they will then admit that their acts were their own, and Trump's lawyer will move for and be granted summary judgment.

Like I said, there are lots of ways to get this kind of case dismissed, and these examples are just off the top of my head without doing much thinking about it. Last year I got burned by the NJ Supreme Court in a way that even I never saw coming -- and this was after litigating the case for seven years with two trips through the Appellate Division and back. This is why the opinions of professional tee-vee lawyers are worth so little. Like medicine, every field of law is a specialty, and you need a specialist to get an accurate prognosis.

[Bicycle Bill]

The latest —
Ron Johnson has stated he believes that January 6 wasn't an 'armed insurrection' ...
because there weren't enough shots fired or guns confiscated to qualify it as one.

I can't wait for the next election cycle so I can happily vote against this putz.

-"BB"-