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Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

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As I laid out here, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him last week. Click through for my explanation of why it matters that Judge Mehta — among the most respected of DC judges — issued this decision.

But there’s another reason why it matters that Mehta issued this ruling.

I was, frankly, unsurprised that Mehta ruled for plaintiffs on their claims that Trump entered into a conspiracy with two militias to attempt to prevent the vote certification. I’ve been laying out all the evidence Trump could be included in a conspiracy with the militias to obstruct the vote count for some time. And on a motion to dismiss, the judge must  assume all the alleged facts were true and only tests those claims for plausibility. Mehta didn’t rule that Trump did so; he ruled that plaintiffs will have a chance to make that case.

I was far more surprised that Judge Mehta also ruled it plausible that Trump aided and abetted the actual and threatened physical assaults committed by the rioters. Here’s how Eric Swalwell’s suit argued that Trump abetted the threatened attacks on Members of Congress, including Speaker Pelosi:

240. Many individuals in the mob either carried weapons or used objects such as poles and fire extinguishers as weapons before and after entering the building. Some individuals in the mob also carried restraints such as plastic handcuffs and rope.

241. The mob also unlawfully and intentionally entered non-public areas of the Capitol building, including the members’ private offices. Members of the mob damaged and vandalized personal and public property and stole documents, electronics, and other items from some members’ offices.

242. As the mob made its way through the Capitol looking for Members, participants threatened to kill numerous individuals, including, but not limited to, Vice President Mike Pence and Speaker of the House Nancy Pelosi. The mob terrorized and injured scores of people inside and outside of the Capitol, including the Plaintiff.

[snip]

248. Before directing the mob to the Capitol, the Defendants instructed them to “fight like hell,” “start taking down names and kicking ass,” and that it was time for “trial by combat.”

249. The Defendants intended these words to be taken literally.

250. For several hours after the mob had stormed the Capitol, the Defendants refused to communicate anything to the mob that might discourage continued unlawful action.

251. The Defendants knowingly and substantially assisted in the assault that was perpetrated upon the Plaintiff. The Defendants riled up the crowd and directed and encouraged the mob to attack the Capitol and seek out members of Congress and assault them.

Here’s how Capitol Police officer Sidney Hemby, described being assaulted while trying to protect the East doors of the Capitol in his lawsuit with James Blassingame.

63. Officer Hemby ran to the East Front stairs to try to stop the crowd, but it was too late, and the crowd was too large and aggressive.

64. The crowd chased him and his fellow officers to the top of the stairs and forced them against the doors.

65. At 1:49 p.m. 1 , after Trump had returned to the White House, and was reportedly watching on TV as events were unfolding at the Capitol, he tweeted out the entirety of his speech:

66. At 1:59 p.m., insurrectionists pushed Capitol Police to the top of the east Capitol steps, and by 2:10 p.m., insurrectionists began attempting to break into the building through windows on the west side.

67. Officer Hemby was crushed against the doors on the east side trying to hold the insurrectionists back. Over and over, he tried to tell the insurrectionists that the doors opened outward and that pressing him into the door would do no good.

68. But the insurrectionists continued to scream, “Fight for Trump,” “Stop the Steal,” and various other slogans, as they struck him with their fists and whatever they had in their hands. Things were being thrown at him, and he was sprayed with chemicals that irritated his eyes, skin, and throat.

Judge Mehta rejected Trump’s bid to dismiss those arguments.

Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-andabetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases.39

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

39 President Trump contends for the first time in his Swalwell reply brief that aiding and abetting a tort is not a recognized cause of action under District of Columbia law. Swalwell Trump Reply at 25–26. That argument comes too late, and the court declines to consider it.

Again, this is just the first step. It will be appealed. This is not a final ruling. But Mehta’s decision means that both sets of plaintiffs may get a chance to hold Trump accountable for the violence attempted or committed by people who responded to the President’s command to, “fight like hell.”

This part of Mehta’s ruling is far more important than the conspiracy side. To understand why, consider some of the cases over which Judge Mehta is presiding, which would be what he might have in mind when he thinks of what it means that Trump may have abetted assaults.

Landon Copeland

Landon Copeland is an Iraq War veteran with PTSD that has contributed to some epic meltdowns in court hearings. He traveled to DC on January 6 from the Four Corners region of Utah, taking a full week off work. He said he made the trip, he told the FBI, because President Trump ordered him to be there.

The defendant said that he traveled to the Capitol in part because former President Trump ordered him and others to be there.

Copeland went to Trump’s rally, then went with the crowd to the Capitol. He’s a really big guy and is accused of several assaults at the first barricades.

At the front of this crowd, the defendant shouted at the officers; he was visibly angry. Shortly thereafter, another rioter approached a police officer, began shouting at the officer, and put his hands on or around the officer’s neck. Copeland pushed that other rioter, from behind, into the officer, causing that officer to fall to the ground. After this, other officers stepped forward in an apparent attempt to protect the fallen officer. Copeland grappled with and pushed them, grabbing onto one officer’s riot shield, another officer’s jacket, and then pushing against the riot shields of two other officers.

Thomas Webster

Thomas Webster is a former Marine and retired NYPD cop who traveled to DC from New York with a revolver, a bullet-proof vest, and some MREs. While he claims he left the revolver in his hotel room, he wore his bullet proof vest to the rally at the Ellipse, then walked to the Capitol, carrying a Marine flag. After verbally attacking one of the cops at a barricade, he pushed over it, wrestled the cop to the ground, and grabbed his helmet, seemingly (though not in fact) gouging the cop’s eyes.

Shane Woods

Shane Woods drove to DC from Illinois on January 5. Like the others, Woods went to the Trump rally and then walked with the crowd to the Capitol.  In some of the early fighting at the west side of the Capitol he is accused of tripping a female cop.

Then, a few hours later, Woods was involved in a group attack on some media, allegedly tackling a cameraman in similar fashion to the attack on the cop.

Peter Schwartz

Peter Schwartz is a violent felon who traveled to DC while out on release from prison because of COVID. Schwartz is accused (along with a woman I believe to be his partner) of involvement in a range of assaults on cops protecting the Lower West Terrace and the Tunnel on January 6, including stealing mace from and then using it on cops and throwing a chair.

On January 7 he described his actions as being part of “What happened yesterday was the opening of a war. I was there and whether people will acknowledge it or not we are now at war.”

The Oath Keepers

As I’ve noted repeatedly, Mehta is also presiding over the Oath Keepers, who all entered the East door and therefore would be among those kitted out people who violently pushed past Sidney Hemby. A few of the Oath Keepers are individually accused of assault. For example, video shows veteran Joshua James fighting with a cop in the Rotunda, screaming, “Get out! … This is my fucking Capitol!”

But members of the Stack who pushed past Hemby as he was protecting that door are suspected of far more serious plans for assault. As Mehta noted in ruling for the pre-trial detention of Stewart Rhodes on Friday — the same day he issued this ruling — once the Stack broke into the Capitol, they split up, with part of the group trying to make it to the Senate and the other part going to Nancy Pelosi’s office.

The latter is of particular concern because, on Election Day, Kelly Meggs told his wife and kid he was “gonna go on a killing spree … Pelosi first.”

Then after he had gone to her office, he told someone (probably his kid again), that “we looked for[] her.”

Judge Mehta has good reason to suspect (and likely knows far more about how serious this plot was) that the Oath Keepers, after busting into the Capitol past Hemby, took steps to hunt down Nancy Pelosi, and possibly someone in the Senate, like Pence.

When Judge Mehta says he thinks it is plausible that Donald Trump abetted assaults and threatened assaults at the Capitol, he’s not speaking abstractly. Judge Mehta has a very specific understanding of the kinds of assaults that happened that day. Those were  violent attacks on cops — several allegedly committed by military veterans and one by a retired NYPD cop. Those include a gratuitous attack on the media. It includes an attempt to hunt down the Speaker of the House.

With this ruling, Trump may be on the hook for such assaults civilly.

But given that the judge presiding over some spectacularly violent assaults that day has judged that Trump’s actions may rise to an aid and abet standard, it may make DOJ more seriously consider Trump’s exposure for such acts criminally.

Related Post

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

January 6: A Change of Pace

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Although GWU’s tracker, which is still the best way to keep track of all the January 6 defendants (though this visual story from WaPo using their data is nifty) added four new January 6 defendants yesterday, the pace of new defendants has slowed considerably. While there are still some detention fights, several of those disputes (Proud Boys Ethan Nordean and Joe Biggs, and disorganized conspirators Nate DeGrave and Ronnie Sandlin, as well as Neo-Nazi sympathizer Timothy Hale-Cusanelli — have moved to the DC Circuit.

We’re likely to have more bail revocation fights. The other day, for example, Landon Copeland — who made news for his meltdown during a magistrate judge’s hearing last week — was arrested for some still unidentified bail violation. The government has also moved to revoke Patrick Montgomery’s bail because he — a professional hunting guide — shot a mountain lion that he — a felon — cannot legally possess.

But there are a couple of developments this week that point to what’s going on with this investigation.

Delayed phone exploitation

In a hearing in the case against mother and son defendants Deborah and Salvador Sandoval, Deborah’s attorneys were anxious to move to trial based off an apparent misunderstanding that the evidence on her sole computer device, her smart phone, would show she barely entered the Capitol. Meanwhile, the government revealed that because Salvador chose not to share passwords to his multiple devices, those are taking a lot longer to exploit. As I’ve already noted, Ethan Nordean is the only Proud Boys leadership co-conspirator whose phone DOJ was able to exploit without cracking the password first (the FBI got the password from Nordean’s wife). Exploiting all these phones is going to take a lot of time.

In another case, there appear to be privileged communications on Eric Torrens’ phone, which will delay the exploitation of that for up to four weeks as a filter team reviews the content.

In other words, even before you consider any delay created by FBI’s need to respond to Signal’s Moxie Marlinspike’s exposure of vulnerabilities in Cellebrite’s code, it will take some time to process the vast volume of evidence the government has obtained since January 6.

The network analysis

The arrest of Brittiany Dillon gives a sense of another cause of delay.

Bryan Betancur was one of the first wave of January 6 defendants to be arrested, on January 17, after his parole officer alerted the FBI that he had lied about handing out Bibles to get permission to travel from Baltimore to DC that day. The government got a warrant for his phone on January 20. Once they got into his phone, they discovered text messages between Betancur and Dillon in which Dillon described falling in the door of the Capitol during the riot. The government found video of her — falling down as she entered — on surveillance videos by January 23. The government obtained phone and Google warrants to confirm that Dillon had been inside the Capitol the day of the riot. For some reason, the FBI only got around to interviewing Dillon’s father, ostensibly about Betancur, on April 21; the agent got Dillon’s father to confirm Dillon’s ID while they were talking.

This is similar to what happened with Patrick Montgomery, who like Betancur was arrested on January 17. Only after FBI exploited his phone and found some key pictures did they arrest a buddy he was with that day, Brady Knowlton, while pursuing two others.

These arrests of friends of early arrestees may reflect an FBI agent trying to get arrest numbers, but in a number of cases, they seem to reflect larger investigative strategies based on things investigators have found in the profiles of the original defendant. By my count there are about 18 cases of network arrests aside from the militia conspiracies, and about half of those look like they may be more interesting than friends getting scooped up together. I would expect to see more of this going forward.

Delayed arrests

The two month delay between the time DOJ identified active duty Marine, Major Christopher Warnagiris, as the person who played a key role in keeping the East door of the Capitol open after it was first breached on January 6 and when they arrested him on Wednesday is far more interesting.

As the arrest affidavit explains, FBI isolated Warnagiris as a suspect based on his conduct as shown in video, and then published a Be On the Lookout picture to figure out who he was. On March 16, a former co-worker IDed him, and on March 17, the FBI interviewed one of his current co-workers, who positively IDed Warnagiris.

And that’s it–that’s where the narrative in the affidavit, which was signed on Wednesday, ends. They get a BOLO-based tip on March 16, and get military witnesses to confirm his ID on March 17. And that’s all they’re telling us about who he is and what other evidence they have against him.

I’m sure that’s not all that has transpired since FBI discovered an active duty Major played a key role in keeping the East Capitol breach open.

All the while, someone who by dint of being an active duty service member has clearance, has (as far as we know) been going into Quantico every day for the almost two months since they IDed him. That’s … an interesting investigative decision.

Compare that narrative to the one told in the arrest affidavit of Timothy Hale-Cusanelli, the Army reservist and Nazi-sympathizer who worked as a contractor at Naval Weapons Station Earle in New Jersey. On January 12, an informant told the FBI that Hale-Cusanelli was at the riot, on January 14, the informant recorded a conversation in which Hale-Cusanelli admitted to pushing and shoving along with the rest of the mob. Hale-Cusanelli has been jailed since the very next day, January 15 (he is appealing his detention to the DC Circuit). Hale-Cusanelli has not been charged with assault and he is not known to have played such a key role in compromising the Capitol from a second side.

Now, for many defendants, I can see taking your time after the initial rush of arrests. After all, if they were going to delete their Facebook, that would have happened (and did happen, with a goodly number of defendants) by January 9. But Warnagiris seems like a more urgent risk.

And, remarkably, DOJ apparently did not ask for any special conditions on Warnagiris. He has no location monitoring, no restrictions on possessing a gun, no specificity to his travel around DC (most defendants have stay-away orders, but for people like Warnagiris who are local to DC, they’re sometimes restricted to their District). They did not ask him to surrender his passport. Now, perhaps something is also going on with him in the military. But the whole thing — on top of the inevitable shock of having an active duty officer arrested — raises more questions than other cases.

All of which is to say that, with a defendant who genuinely poses unique security risks, the government is now taking their time to flesh out their investigation.

I’ve said from the start that this investigation has been lightning quick. That’s still, absolutely, true. But there’s going to be a lot more happening behind closed doors in the weeks ahead.

Radicalized by Trump: A Tale of Two Assault Defendants

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Journalists and the public who called into Magistrate Judge Robin Meriweather’s public access line yesterday presumably called in to hear the initial hearings for a range of January 6 defendants. There were the two life-long friends, Jennifer Ruth Parks and Esther Schwemmer, whose lawyers went to some effort to ensure the no contact provision imposed upon their arrests was explicitly dropped in release conditions as they await resolution of their misdemeanor trespass charges. Right wing media figure Billy Tryon from upstate NY, accused of trespassing, had his appearance without incident. Somehow Albuquerque Cosper Head, accused in one of the more brutal attacks on January 6, the group assault on Brian Fanone, was a side-story of this hearing.

But the hearing — scheduled for an hour but lasting far longer — ended up posing an apt lesson in the human tragedy created by Trump’s radicalization of his supporters.

Even before the judge came in, Landon Copeland had disrupted the proceedings for others. A friend who had logged into the Zoom conference — which is supposed to be restricted to official participants like defendants, lawyers, and pretrial services officers — got booted for using an obscene name. Copeland took a week to travel from Southern Utah to the insurrection with his girlfriend. He is accused of assaulting cops and participating in a civil disorder along with the trespassing charges that virtually all January 6 defendants get charged with.

After he was arrested, Copeland was let out on personal recognizance, but in the wake of learning he’d face consequences for his participation in the riot, he posted threats of violence to his Facebook account.

Plus, Copeland had a recent arrest for violence. He was arrested in early 2020 for stealing a car and lighting it on fire.

Copeland’s interruptions early in the hearing seemed like rage about being held accountable and incomprehension about both the seriousness of his plight and basic things like managing a conference call appearance. As he started screaming, most on the line realized what the outbursts would do for his defense against charges that he lost control on January 6, blew off authority, and beat up some cops, and multiple lawyers and court personnel kept trying to counsel him to shut up. He even promised he would be quiet at one point, only to interrupt as the government described base-level pre-trial release conditions by asking, “Is any of this negotiable?”

Perhaps the most telling exchange came when Anthony Antonio’s attorney, Joseph Hurley, started into a long explanation about why his client — who was arrested in Delaware, lives in South Carolina, but needs to travel nationally for his job — should not have any district level travel restrictions on his release conditions.

If you go by his his arrest affidavit, Antonio is as dangerous as Copeland. He’s not charged with assault, but is charged with participating in a civil disorder,  obstruction, and depredation of property (the charge used to add detention enhancements to militia conspirators). He showed up wearing a 3%er patch and a bullet proof vest. He was involved in the fight in the Lower West Tunnel. And while he grabbed a bullhorn and emphasized keeping the riot peaceful, after he did so, he broke into an office and trashed the place, allegedly coming away wielding a table leg as a weapon.

According to Antonio’s arrest affidavit, the FBI IDed him first by releasing his image in a BOLO, then responding to a tip provided in response.

That’s not what Hurley said. Hurley told Magistrate Meriweather that days after the riot, Antonio had come to his Wilmington, DE office and overcome Hurley’s initial resistance to work with any January 6 defendants by convincing him he was really an up-standing citizen whose mind had been rotted by Fox. This is not a new ploy. Many attorneys representing January 6 defendants have claimed that their clients did what they did because they had been caught up in Trump’s lies. In this case, Hurley claimed that the riot had cured his client of his belief in Trump, but also made him realize that the six months he spent with a bunch of guys living in Naperville during COVID had given him “Foxitis,” and led him to deviate from a successful life in sales to participate in a mob.

Hurley led the growing call-in audience to believe that Antonio came to him and they went to the FBI. But the arrest affidavit suggests that Antonio and Hurley first met the FBI on February 4, long after other witnesses turned him in, and in that meeting, Hurley downplayed his involvement and claimed the cops let them do what they were doing.

On February 4, 2021, FBI agents interviewed ANTONIO with his attorney present. ANTONIO stated that he came to Washington, D.C. because then-President Trump told him to do so. He admitted that he was at the Capitol on January 6, 2021, and saw that there were barriers up and that people were clashing with the police. ANTONIO admitted that he was on the scaffolding that day, but stated that another person also on the scaffolding said, “I’m media,” showed ANTONIO a badge, and said that ANTONIO could be on the scaffolding because he (ANTONIO) was “with” the person with the badge. ANTONIO told the agents that he was advising others not to come up on the scaffolding because he was worried it would fall.

When asked if he heard the police give any commands, ANTONIO claimed that when he was on the scaffolding he heard announcements over a speaker, but could not understand what was being said. ANTONIO said that he saw the barriers pushed over by people and that the police were gone. According to ANTONIO, he thought “I guess they gave us the steps, they said we could be on the steps, they’re, they’re done.” ANTONIO also told agents that when he was on the “steps,” – contextually referring to the steps of the Lower West Terrace – he observed a person who was bleeding from the head, and he tried to make a path through the mass of people to get the injured person aid.

When the FBI asked Antonio whether he had entered the room of the Capitol in which — he told VDARE — [we] “broke everything,” Hurley refused to let him answer.

ANTONIO was asked if he was ever in a position to observe what was going on inside the Capitol building. ANTONIO responded that there was a woman yelling, “we broke the window,” and through that window he observed people smashing furniture and piling it in front of the door to create a barricade. ANTONIO reported that because of the chemical irritants in his eyes, he was rubbing them, but he could hear the sound of the property being broken inside the room. When asked if he went inside the Capitol building, ANTONIO’s lawyer stated, “Next question, please,” and the agents complied with that request.

Plus, there’s a key gap — at least in the April 14 affidavit, dated six days before his arrest — in the narrative of what Antonio did. Surveillance video shows Antonio approaching the cops inside the tunnel bearing a stolen riot shield, but that video, at least, doesn’t show what he did there.

Once he made his way to the front of the tunnel, ANTONIO turned his hat around so that the bill was facing backwards. At this time in the investigation, due to the angle of the surveillance video, it is unclear what actions ANTONIO took at the front of the tunnel. Approximately two minutes later, ANTONIO left the tunnel with the riot shield still in his possession. About twenty minutes later, ANTONIO reentered the tunnel and pushed his way towards the front of the crowd; he was ultimately pushed out of tunnel. As before, it is unclear at this point, what ANTONIO did while inside the tunnel due to the angle of the surveillance video.

Antonio told the FBI, at what seems to have been a well-rehearsed interview with the famously showy Hurley (who claimed the only attorney who could vouch for him in DC was a guy named Joe Biden, but that guy isn’t admitted to the DC Bar), that he looked into Michael Fanone’s eyes and saw death and realized things had gone too far.

ANTONIO told the agents that while he was on the steps, he observed about six men drag a police officer down the steps. He claimed that he heard the sound of a taser, looked in that direction, believing that the officer was using the taser against the crowd, but “it was the exact opposite.” Your affiant is aware that this police officer, Officer 1, was tased by participants in the riot. ANTONIO claimed that he locked eyes with the officer, who said, “help, help,” and ANTONIO could see “death in the man’s eyes.” ANTONIO stated he would not be able to get the image of the officer out of his head. ANTONIO reported that this was the point he said to himself something was wrong and not right. According to ANTONIO, he did not help the officer, and “missed my judgement, I didn’t help him when I should of.”

But that was before he entered the Capitol and trashed the joint. And when the guy wearing a 3%er patch and flashing 3%er symbols was asked about affiliations with right wing extremists, he simply said he knew of but was not affiliated with the Proud Boys.

Anyway, Hurley was telling the carefully rehearsed story about how his client’s “Foxitis” explains his role in the insurrection and claiming that his client was cooperating and they would be happy to waive speedy trial for years to let all the bad people be prosecuted first at a dial-in hearing that live coverage about Copeland’s disruptions had attracted more attention to, and Copeland interrupted this speech and said, “This is not pertinent.”

Copeland then continued to hijack the conference between patient court employees muting him, him hanging up, and one after another services personnel calling in to see if they could help.

It was difficult to tell how much of Copeland’s interruptions were about the PTSD that, it was mentioned at the trial, he suffered from or from ties the Sovereign citizen movement in southern Utah. His service and his “taxes” (which he made clear included his child support) were recurrent theories.

I need a bunch of stuff, I’m a veteran, and you owe this to me, I got shot at in Iraq. You guys just done fucked this up. I don’t know who you are. I’m clear out here in the middle of the desert in no man’s land. You can’t come get me if I don’t you to.

An FBI Agent, who was prepared to talk about his threats on Facebook, showed up. But by then, Judge Merriweather had decided she couldn’t move forward without a competence hearing, all exacerbated by the challenge of finding someone Copeland trusted enough to encourage him to attend the hearing. It’s impossible to tell where the very real PTSD ends and the Trump-stoked resentments begin.

Against the background of Hurley claiming Fox and Trump had made his client crazy enough to join a riot, Copeland’s outbursts made it clear how dangerous was the way that Trump has exacerbated the instability of his supporters, how the effect leaves us with no good options.

But claiming his client had been temporarily made crazy by Fo worked for Hurley, at least. His client got his national release conditions.