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Capitol Police have best deal against Trump for insurgency

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The strength of the combination of officers James Blassingame and Sidney Hemby lies in its time-tested simplicity. Not relying on any act of Congress, but simply invoking common law principles supported by Washington, DC, the code’s provisions prohibiting incitement to riot and incitement to violence, their prosecution focuses on the allegations that Trump directed, aided and abetted the gardening offenses of assault and battery and intentional infliction of emotional distress. These are the types of tort claims litigated every day in courts across the country, which date back to the most basic tenets of English common law. The lawsuit alleges Trump was guilty of intentional, gratuitous and reckless conduct while instigating a violent crowd already primed by his months of inflammatory rhetoric to cause serious damage and injury to property and people, including the two officers from the Capitol.

The jurisdiction invoked by this simple complaint refers to the first law of our country creating federal courts of first instance: under the law on justice of 1789, empowering these courts of first instance to serve as neutral arbitrators in controversies between citizens of different states, the police as citizens of Maryland sue Trump as a citizen of Florida, creating the requisite diversity of citizenship. And, while seeking punitive damages sufficient to punish Trump for his tortious behavior and to deter future presidents from engaging in similar behavior, they avoid parrying their complaint with compensatory damages estimates of several million or more. billions of dollars.

The minimalist minimalism of the combinations offers pragmatic advantages. His claims can be easily understood by a jury of non-lawyers, leaving more of the focus at trial on the damning details of Trumps’ conduct and the horror of the bloody riot itself rather than legalistic prolixity. The more complex Swalwell and Thompson lawsuits are also potentially more vulnerable to defensive technicalities, including questionable claims that individual members of Congress, even if they are personally terrified, do not have the legal status required to bring a lawsuit. justice for the harm done to Congress as a whole.

Poetic justice is impossible to miss: In the days leading up to the uprising, a Twitter follower of the Trumps’ marching orders shouted online that cops don’t stand up if they’re lying on the ground in a pond of their own blood. In a tragic twist, Blassingame and Hemby effectively bled and were beaten to the ground, erasing any possible doubt about their ability to make the claims underlying their lawsuit.

Given the simplicity of their trials and their rock-solid solidity, it seems certain to survive any attempt at revocation or provisional summary judgment. But it will surely reach the discovery stage, where agents can ask the court to compel Trump and his associates to produce documents and testify under oath. What these investigations reveal will undoubtedly prove to be essential in advancing the officers’ case and other civil lawsuits that may follow. And they will prove to be vital to the public as well as the nation struggles to piece together exactly what happened on Capitol Hill and why.

But the real power of the costumes lies in the officers’ visceral, heartbreaking tales of that heartbreaking day. The jury will surely be moved by the brutality and terror to which the officers were subjected by being brutally beaten, slammed against stone columns and smashed against the doors and walls of the Capitol, just for doing their best to protect the Capitol. of nations and those who do public business. All this while being sprayed with chemicals and strewn with countless verbal assaults. Blassingame, for his part, was called the n word so often that he lost count.

Probably the most important legal issues at trial will be the First Amendment. First, an outgoing president calls for the beheading of a coordinated branch of government so that he can remain in power despite his loss of the Electoral College entitled to the same protections of freedom of expression as an ordinary citizen calling to a violent insurrection from a soapbox in a public park even though this equation would turn on its head a shield for the citizens against the government into a sword for the government against the people? And second, even if the answer to the first question is yes, something that I and other researchers have vigorously refuted if Trumps’ statements escaped treatment as the very type of incitement to impending lawless action that the Supreme Court, in Brandenburg v. not be protected by the First Amendment? In my opinion, the answer to both questions is categorically no. Otherwise, freedom of speech will have become a license for presidents to become dictators.

Facing his most rabid supporters on January 6, Trump spoke in terms of aggression. As the costume details, Trumps’ call to action sparked an instant shift to direct crowd violence, which went from singing Fight like hell and Fight for Trump to screaming Storm the Capitol and Take the Capitol right now. The imminent lawless action of trespassing and physical violence against officers like Blassingame and Hemby followed in less than an hour.

In any event, the Capitol officers who presented this case could amend their complaint without alleging additional facts by pleading the same federal statutory civil rights claims upon which the Thompson lawsuit is based and which the Swalwell lawsuit relies on in two cases. of its nine demands. Federal law I have in mind would hold Trump responsible for the conspiracy[ing] to prevent, by force, intimidation or threat, the performance of official policing functions of officers on Capitol Hill and, knowing the existence and impact of this plot, for negligence[ing] or refuse[ing] to exercise his power, both private and presidential, to prevent or help prevent the misdeeds of the plot.

These federal claims, as made by Swalwell and Thompson, do not imply any First Amendment rights to speak. They allege no damage to Trumps’ speech as such, but only rely on it as constitutionally unprotected evidence that he engaged in conspiratorial action followed by breach of his duties when the performance of this duty could have avoided the alleged prejudices. But the benefit of not including these federal civil rights claims is clear: simple, like small, can sometimes be optimal.

Too often, contemporary litigation can be flashy, fanciful and obscuring. Trump, after all, has spent his entire life bringing creative and frivolous lawsuits to intimidate his enemies. This trial is anything but. Humble, detailed, and beautifully simple, it exemplifies the egalitarian aspirations of American justice and is likely to produce just that.

Laurence H. Tribe is Professor Emeritus of Carl M. Loeb University at Harvard University. Follow him on Twitter at @tribelaw.

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