Thompson v. Trump

• Citation: 590 F.Supp.3d 46
• Docket Number: Case No. 21-cv-00400 (APM), Case No. 21-cv-00586 (APM), Case No. 21-cv-00858 (APM)
• Decision Date: 18 February 2022
• Parties: Bennie G. THOMPSON et al., Plaintiffs, v. Donald J. TRUMP et al., Defendants. Eric Swalwell, Plaintiff, v. Donald J. Trump et al., Defendants. James Blassingame & Sidney Hemby, Plaintiffs, v. Donald J. Trump, Defendant.
• Court: U.S. District Court — District of Columbia

590 F.Supp.3d 46

Bennie G. THOMPSON et al., Plaintiffs,

v.Donald J. TRUMP et al., Defendants.

Eric Swalwell, Plaintiff,

v.Donald J. Trump et al., Defendants.

James Blassingame & Sidney Hemby, Plaintiffs,

v.Donald J. Trump, Defendant.

Case No. 21-cv-00400 (APM)

Case No. 21-cv-00586 (APM)

Case No. 21-cv-00858 (APM)

United States District Court, District of Columbia.

Signed February 18, 2022

Matthew G. Kaiser, Sarah Fink, William Bullock Pittard, IV, KaiserDillon PLLC, Philip C. Andonian, Joseph P. Caleb, Caleb Andonian PLLC, Barry Coburn, Coburn & Greenbaum, PLLC, Washington DC, for Plaintiff Eric Swalwell.

Jesse R. Binall, Binnall Law Group, Alexandria, VA for Defendants Donald J. Trump, Donald J. Trump Jr.

Joseph D. Sibley, IV, Camara & Sibley LLP, Austin, TX, for Defendant Rudolph Giuliani.

Mo Brooks, Washington, DC, Pro Se.

Joseph M. Sellers, Alison Sarah Deich, Brian Christopher Corman, Cohen Milstein Sellers & Toll PLLC, Washington DC, for Plaintiff Bennie G. Thompson.

Joseph M. Sellers, Alison Sarah Deich, Cohen Milstein Sellers & Toll PLLC, Washington DC, for Plaintiffs Bonnie Watson Coleman, Karen R. Bass, Pramila Jayapal, Maxine Waters, Jerrold Nadler, Henry C. Johnson, Stephen I. Cohen, Barbara J. Lee, Veronica Escobar, Marcia Kaptur,

Joseph M. Sellers, Cohen Milstein Sellers & Toll PLLC, Washington DC, Anna Kathryn Barnes, NAACP, Baltimore, MD, for Plaintiff. ALL Plaintiffs.

Jesse R. Binall, Binnall Law Group, Alexandria, VA, for Defendant Donald J. Trump in 21-cv-00400 and 21-cv-00858.

Jonathon Alden Moseley, Jonathan Moseley Attorney at Law, Burke, VA, Kerry Lee Morgan, Consumer Law Group, P.C., Redford, MI, for Defendant Oath Keepers.

John Daniel Hull, IV, Hull McGuire PC, Washington, DC, for Defendant Enrique Tarrio.

Daniel C. Scialpi, Heather J. Kelly, Patrick A. Malone, Patrick Malone & Associates, P.C., Washington, DC, Anne Harden Tindall, Cameron Oatman Kistler, Eric John Galvez Paredes, Protect Democracy Project, Washington, DC, Benjamin Leon Berwick, The Project Democracy Project, Inc., Watertown, MA, for Plaintiffs James Blessingame, Sidney Hemby.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Court Judge

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. 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 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 conspiracy 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 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 allegations. Additionally, a citation to one...