On Friday, Federal District Judge Amita Mehta ruled that a civil suit alleging a conspiracy to foment the Jan. 6 insurrection could proceed. In an extremely thorough and detailed 112-page ruling, Mehta concluded that the plaintiffs had made a “plausible” case that former President Trump himself was at the center of a conspiracy to stop the peaceful transfer of power.
While plausibility is not the same as proven, Mehta’s ruling is the first time such a finding has been made in an official proceeding.
It brings the nation one step closer to learning the truth about Trump’s role in the Jan. 6 insurrection. It keeps alive an important avenue for holding him accountable for his actions.
And it paves the way for the work of the U.S. House Select Committee to Investigate the January 6th Attack on the United States Capitol.
This suit was brought by several Democrats in Congress and U.S. Capitol Police officers. It alleges that Trump violated 42 U.S. Code § 1985, the so-called Ku Klux Klan Act. In so doing, it artfully and evocatively links the Jan. 6 insurrection with the shameful post-Civil War history of white supremacist violence. Congress passed the Klan Act in 1871 to provide legal remedies against vigilante groups trying to prevent newly freed slaves from exercising their rights and trying to intimidate officials protecting Black civil rights.
Section 1 of the Act prohibits conspiring “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 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.” That description all too accurately fits the events of Jan. 6.
The invocation of the Klan Act suggests that by trying to stop the certification of Joe Biden’s election, Trump and his allies were, in effect, channeling their white supremacist predecessors. They were seeking to nullify the Black vote that had played a critical role in Biden’s victory. That Jan. 6 insurrectionists carried Confederate flags only drives home their intent.
Mehta’s decision also reminds us of the important role an independent judiciary plays in the battle to preserve a civic order in which facts matter and no one can defy the law with impunity.
It represents a stark counterpoint to the efforts Trump made throughout his time in office to promote what political scientist Javier Corrales calls “autocratic legalism.”
The former president regularly attacked judges with whose rulings he disagreed and accused them of partisanship. He tried, as Corrales notes is typical of autocrats, to “erode the impartiality of the law” and “use and abuse the law to protect” himself and his allies. Trump previously accused Judge Mehta of making “crazy” and partisan rulings befitting an “Obama-appointed judge.”
But there seems nothing crazy or partisan about Friday’s ruling.
In fact, at the same time that Mehta painstakingly reviewed the evidence against Trump, he delivered a victory to the president’s son, Donald Trump, Jr., and Rudy Giuliani by dismissing claims made against them.
The judge was also well aware of the momentousness of allowing the suit against the former president to proceed. “To deny a president immunity from civil damages is no small step,” Mehta wrote. “The court well understands the gravity of its decision. But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity.”
Mehta framed the almost unimaginable fact that an incumbent president tried to undo the results of an election in light of the well-established principles of civil conspiracy. He did an especially important service to the public and to the Jan. 6 Committee by debunking the popular misunderstanding that to be guilty of conspiracy people need to meet “secretly to hatch a plan to violate the law.”
The kinds of conspiracies that the law prohibits do not “require such a degree of deliberation, formality and coordination. In fact a civil conspiracy requires only an express or “tacit” agreement to “participate in an unlawful act or a lawful act in an unlawful manner.”
It is enough, the judge wrote that members of the conspiracy “‘in some way or manner, or through some contrivance … came to a mutual understanding to try to accomplish a common and unlawful plan.’”
The judge detailed the steps that Trump took to “‘prevent, by force, intimidation or threat’” congressional certification of Biden’s election to the presidency. He was clear and direct in laying out the evidence that suggests the plausibility of the plaintiffs’ contention that Trump and his allies “created the conditions that would enable the violence” that happened on Jan. 6.
The president’s role was, as Mehta puts it, “multifaceted.” His co-conspirators included the Proud Boys, the Oath Keepers and “others who entered the Capitol … with the intent to disrupt the certification of the Electoral College vote through force, intimidation or threats.”
This multifaceted role included Trump’s months-long lies about election fraud and corruption, his invitation to supporters to come to Washington, D.C., on Jan. 6 to be “wild,” his direct involvement in planning that event, his speech to his supporters assembled there, and his response — or lack thereof — to events as they unfolded later that afternoon.
In a particularly damning part of his opinion, Mehta notes that it was “the president’s and his campaign’s idea to send thousands to the Capitol while the certification was underway. It was not a planned part of the rally.”
Here Mehta seems to point the way to an answer to the question that Rep. Liz Cheney (R-Wyo.) has said is crucial to the Select Committee: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”
As the distinguished historian Carlo Ginsburg once noted, “Evidence, like clue or proof, is a crucial word for the historian and the judge.” Whatever the outcome of the civil case against Trump or of the Jan. 6 Committee’s work, those judges, like Mehta, who respect evidence serve history.
Establishing a record that memorializes Trump’s effort to undo the Constitution and that exposes his blatant efforts to distort the truth about the election serves history — and may also serve to strengthen the current fragile state of our democracy.
Friday’s decision is but a first step in what will undoubtedly be a long legal process. But nothing that comes next will make what Judge Mehta said go away.
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof.