Last week a federal judge held it was “plausible” that the God-King incited violence at his rallies…. (More)
“Get them out! Get them out!”
The case concerns three protesters who were attacked at a God-King rally in Louisville last March. When they began to protest, the God-King yelled “Get them out! Get them out!” Several white supremacists at the rally then struck and pushed the three out of the rally. Here’s a local TV news story with footage of the incident:
The protesters filed a lawsuit charging assault and battery against two people who struck them and incitement, vicarious liability, and negligence against the God-King. The defendants filed to dismiss the complaint, claiming the God-King’s words were First Amendment protected free speech, that his “Get them out!” order was meant for security personnel and not members of the audience, that the God-King cannot be held liable for the actions of audience members, and that the three protesters were trespassing and that brought it all on themselves by disrupting the rally.
U.S. District Judge David Hale granted the motion to dismiss on the vicarious liability claim because the God-King had no right to control the audience, but denied the remainder of the motion to dismiss, holding the protesters had a “plausible” claim of incitement:
According to the Trump Defendants, Plaintiffs’ incitement claim is implausible because there is an “obvious alternative explanation” for the meaning of Trump’s words, namely that he intended for professional security personnel to remove the protestors. […] With this argument, the Trump Defendants effectively seek to impose a probability standard on Plaintiffs’ complaint. […] The Sixth Circuit has rejected this approach, finding it to be inconsistent with Twombly and Iqbal. “Often, defendants’ conduct has several plausible explanations. Ferreting out the most likely reason for the defendants’ actions is not appropriate at the pleadings stage.” Simply put, the plausibility of the Trump Defendants’ explanation for Trump’s statement “does not render all other [explanations] implausible.”
Plaintiffs allege numerous facts supporting an inference that Trump’s order to “get ’em out of here” was directed at audience members. The complaint describes multiple occasions before and after the Louisville rally when Trump allegedly made comments endorsing or encouraging violence against protestors. […] And Bamberger’s letter, quoted in the complaint, confirms that he and others “began pushing and shoving the protestors” upon Trump’s order that the protestors be removed. […] Moreover, after audience members took matters into their own hands, Trump allegedly stated, “Don’t hurt ’em. If I say ‘go get ’em,’ I get in trouble with the press.” […] Presumably, if he had intended for protestors to be escorted out by security personnel, Trump would have instructed the intervening audience members to stop what they were doing, rather than offering guidance on how to go about it. […] In sum, the Court finds that the Trump Defendants have not identified an “obvious alternative explanation” for Trump’s statement warranting dismissal of the incitement claim.
To be clear, Judge Hale did not hold the God-King was liable for incitement. On a motion to dismiss, the judge must treat every fact alleged by the plaintiff as true unless that alleged fact is “implausible.” That’s why he quoted this bit: “Ferreting out the most likely reason for the defendants’ actions is not appropriate at the pleadings stage.”
At trial, a jury may decide the God-King was addressing security personnel and not audience members when he said “Get ’em out!” But Judge Hale held it was “plausible” that the God-King wanted his supporters to act, noting that the protesters cited several previous rallies where the God-King openly endorsed violence against protesters, including a rally in Iowa where he told supporters to “knock the crap out of ’em” and promised to pay their legal fees if they were arrested or sued, and he told NBC’s Meet the Press that he might pay the legal fees of a man who was charged with assault for sucker-punching a protester in North Carolina.
Those past events will be relevant evidence, as Lawfare’s Paul Rosenzweig explains:
Second, speaking of factual development, I can see no way in which President Trump avoids a deposition in this matter. We know from Clinton v. Jones that Presidents are not immune from civil discovery during their presidency. And I have to think that Trump’s state of mind and intention are fair game for inquiry. And we know, from past experience, that it is often enticing for a President to “gild the lily” in his testimony – which carries with it, its own risk of accusations of perjury.
Third, context is everything. Though President Trump will argue that his words were not an incitement to violence, that argument may be rebutted by evidence relating to prior bad acts (known as 404(b) evidence). I would expect plaintiffs to contend that prior rallies, and the violence that attended them, were relevant to show that a reasonable person in Trump’s position could expect his words to generate a violent response among his supporters at this particular rally. In other words, if Trump started violent acts at an earlier rally in, say, North Carolina, he should expect that his words would incite violence at this rally in Kentucky. Of course, there will be counter arguments – but the basic fact is that the discovery in this suit will open up an inquiry into all of the various violent acts at the several Trump rallies the preceded the one in question.
So the God-King has only himself to blame, as the Washington Post’s Aaron Blake writes:
It’s merely the latest example of Trump’s team arguing that his controversial words shouldn’t be taken literally. But though that argument may have held water politically during the 2016 campaign, it has since repeatedly hurt Trump’s cause when his words have been at issue in legal proceedings.
Just last week, a federal judge in Hawaii rejected an argument from Trump’s attorneys asking that his travel ban executive order be evaluated without considering Trump’s and his team’s past comments about the motive behind the ban and whether it targets Muslims.
Trump and his team will undoubtedly dismiss this latest example as yet another activist judge who is out to get him. But yet again, they are forced into the position of saying that Trump’s words shouldn’t be taken at face value – that he didn’t mean what he actually, literally said.
I’ve argued before that this is a completely unworkable standard when it comes to the media’s coverage of Trump. It allows Trump team members to retroactively downgrade whatever they want to, while leaving the good stuff intact – essentially a Get Out of Jail Free card they can redeem anytime they want.
But while Trump’s supporters have certainly bought into that arrangement, the courts have yet again proved unwilling to grant the president that Get Out of Jail Free card.
In short, that whole “take him seriously but not literally” excuse won’t hold water in court.
“An unprecedented invitation to corruption and an assault on our democracy”
We believe that the legal advice given to him by your partner is not just simplistic and ill-founded, but that it empowers and even encourages impeachable offenses and undetectable financial conflicts of interest by America’s highest official, and thus is an unprecedented invitation to corruption and assault on our democracy.
You can read their entire termination latter at the link above, and Slate’s Dahlia Lithwick offers analysis:
The letter then catalogs in detail the myriad ways in which Trump’s continuing conflicts of interest and self-dealing violate the Constitution’s Emoluments Clause and characterizes Dillon’s solution as “an illusion of protection against the President using his office for personal gain.” It goes on to detail corruption-related developments since that January press conference, ranging from the granting of 38 trademarks to Trump by China, his D.C. hotels courting foreign business away from other venues, and the doubling of initiation fees at Mar-a-Lago.
Sometimes just calling corruption “corruption” is enough to refocus the mind. This simple letter reminds us how dramatically our conception of what is normal has been redefined in recent months.
And speaking of corruption, the God-King’s former aides are already cashing in:
Some of President Donald Trump’s former campaign hands are rushing to sign lucrative deals with foreign clients, shrugging off their own pledges to avoid foreign lobbying and the president’s vow to “drain the swamp.”
Former Trump campaign manager Corey Lewandowski, whose partner, Barry Bennett, had said last year that their new firm wouldn’t lobby for foreign nations, is among those searching for foreign gold. Lewandowski and Bennett are actively seeking to represent foreign governments and consult on overseas elections, and members of the firm have met in recent weeks with officials from Albania and Kosovo.
Others actively pursuing foreign clients include Bryan Lanza, who served as deputy communications director for Trump’s campaign and plans to represent foreign governments in his new job at Mercury. Mike Biundo, a senior adviser on the Trump campaign, is looking to do political work in foreign countries. And Brad Gerstman, a partner at Gotham Government Relations & Communications, the New York firm that helped orchestrate Trump’s 2015 campaign announcement, said he was “in advanced talks with a whole bunch of these foreign nations.”
How’s that swamp looking now?
Photo Credit: Getty Images
Good day and good nuts