- 22 Dec 2023 11:10
#15299253
Regarding Trump:
The question remains whether the record supported the district court’s
finding that President Trump engaged in the January 6 insurrection by acting
overtly and voluntarily with the intent of aiding or furthering the insurrectionists’
common unlawful purpose. Again, mindful of our applicable standard of review,
we conclude that it did, and we proceed to a necessarily detailed discussion of the
evidence to show why this is so.
¶197 Substantial evidence in the record showed that even before the November
2020 general election, President Trump was laying the groundwork for a claim
that the election was rigged. For example, at an August 17, 2020 campaign rally,
he said that “the only way we’re going to lose this election is if the election is
rigged.” Anderson, ¶ 88. Moreover, when asked at a September 23, 2020 press
briefing whether he would commit to a peaceful transfer of power after the
election, President Trump refused to do so. Id. at ¶ 90.
¶198 President Trump then lost the election, and despite the facts that his
advisors repeatedly advised him that there was no evidence of widespread voter
fraud and that no evidence showed that he himself believed the election was
wrought with fraud, President Trump ramped up his claims that the election was
stolen from him and undertook efforts to prevent the certification of the election
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results. For example, in a December 13, 2020 tweet, he stated, “Swing States that
have found massive VOTER FRAUD, which is all of them, CANNOT LEGALLY
CERTIFY these votes as complete & correct without committing a severely
punishable crime.” Id. at ¶ 101. And President Trump sought to overturn the
election results by directly exerting pressure on Republican officeholders in
various states. Id. at ¶ 103.
¶199 On this point, and relevant to President Trump’s intent in this case, many of
the state officials targeted by President Trump’s efforts were subjected to a barrage
of harassment and violent threats by his supporters. Id. at ¶ 104. President Trump
was well aware of these threats, particularly after Georgia election official Gabriel
Sterling issued a public warning to President Trump to “stop inspiring people to
commit potential acts of violence” or “[s]omeone’s going to get killed.” Id.
President Trump responded by retweeting a video of Sterling’s press conference
with a message repeating the very rhetoric that Sterling warned would result in
violence. Id. at ¶ 105.
¶200 And President Trump continued to fan the flames of his supporters’ ire,
which he had ignited, with ongoing false assertions of election fraud, propelling
the “Stop the Steal” movement and cross-country rallies leading up to January 6.
Id. at ¶ 106. Specifically, between Election Day 2020 and January 6, Stop the Steal
organizers held dozens of rallies around the country, proliferating President
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Trump’s election disinformation and recruiting attendees, including members of
violent extremist groups like the Proud Boys, the Oath Keepers, and the Three
Percenters, QAnon conspiracy theorists, and white nationalists, to travel to
Washington, D.C. on January 6. Id. at ¶ 107.
¶201 Stop the Steal leaders also joined two “Million MAGA Marches” in
Washington, D.C. on November 14, 2020, and December 12, 2020. Id. at ¶ 108.
Again, as relevant to President Trump’s intent here, after the November rally
turned violent, President Trump acknowledged the violence but justified it as selfdefense against “ANTIFA SCUM.” Id. at ¶ 109.
¶202 With full knowledge of these sometimes-violent events, President Trump
sent the following tweet on December 19, 2020, urging his supporters to travel to
Washington, D.C. on January 6: “Statistically impossible to have lost the 2020
Election. Big protest in D.C. on January 6. Be there, will be wild!” Id. at ¶ 112.
¶203 At this point, the record established that President Trump’s “plan” was that
when Congress met to certify the election results on January 6, Vice President
Pence could reject the true electors who voted for President Biden and certify a
slate of fake electors supporting President Trump or he could return the slates to
the states for further proceedings. Id. at ¶ 113.
¶204 Far right extremists and militias such as the Proud Boys, the Oath Keepers,
and the Three Percenters viewed President Trump’s December 19, 2020 tweet as a
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“call to arms,” and they began to plot activities to disrupt the January 6 joint
session of Congress. Id. at ¶ 117. In the meantime, President Trump repeated his
invitation to come to Washington, D.C. on January 6 at least twelve times. Id. at
¶ 118.
¶205 On December 26, 2020, President Trump tweeted:
If a Democrat Presidential Candidate had an Election Rigged &
Stolen, with proof of such acts at a level never seen before, the
Democrat Senators would consider it an act of war, and fight to the
death. Mitch [McConnell] & the Republicans do NOTHING, just
want to let it pass. NO FIGHT!
Id. at ¶ 121.
¶206 And on January 1, 2021, President Trump retweeted a post from Kylie Jane
Kremer, an organizer of the scheduled January 6 March for Trump, that stated,
“The calvary [sic] is coming, Mr. President! JANUARY 6 |Washington, D.C.”
President Trump added to his retweet, “A great honor!” Id. at ¶ 119.
¶207 The foregoing evidence established that President Trump’s messages were
a call to his supporters to fight and that his supporters responded to that call.
Further supporting such a conclusion was the fact that multiple federal agencies,
including the Secret Service, identified significant threats of violence in the days
leading up to January 6. Id. at ¶ 123. These threats were made openly online, and
they were widely reported in the press. Id. Agency threat assessments thus stated
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that domestic violent extremists planned for violence on January 6, with weapons
including firearms and enough ammunition to “win a small war.” Id.
¶208 Along the same lines, the Federal Bureau of Investigation received many
tips regarding the potential for violence on January 6. Id. at ¶ 124. One tip said:
They think they will have a large enough group to march into DC
armed and will outnumber the police so they can’t be stopped . . . .
They believe that since the election was “stolen” it’s their
constitutional right to overtake the government and during this coup
no U.S. laws apply. Their plan is to literally kill. Please, please take
this tip seriously and investigate further.
Id.
¶209 The record reflects that President Trump had reason to know of the potential
for violence on January 6. As President, he oversaw the agencies reporting the
foregoing threats. Id. at ¶ 123. In addition, Katrina Pierson, a senior advisor to
both of President Trump’s presidential campaigns, testified, on behalf of President
Trump, that at a January 5, 2021 meeting, President Trump chose the speakers for
the January 6 event at which he, too, would speak (avoiding at least some
extremist speakers) and that he knew that radical political extremists were going
to be in Washington, D.C. on January 6 and would likely attend his speech. Id. at
¶¶ 48, 126.
¶210 January 6 arrived, and in the early morning, President Trump tweeted, “If
Vice President @Mike_Pence comes through for us, we will win the Presidency.
Many States want to decertify the mistake they made in certifying incorrect & even
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fraudulent numbers in a process NOT approved by their State Legislatures (which
it must be). Mike can send it back!” Id. at ¶ 127. He followed this tweet later that
morning with another that said, “All Mike Pence has to do is send them back to
the States, AND WE WIN. Do it Mike, this is a time for extreme courage!” Id.
¶211 These tweets had the obvious effect of putting a significant target on Vice
President Pence’s back, focusing President Trump’s supporters on the Vice
President’s role in overseeing the counting of the electoral votes and certifying the
2020 presidential election to ensure the peaceful transfer of power. Id. at ¶¶ 128,
291.
¶212 At about this same time, tens of thousands of President Trump’s supporters
began gathering around the Ellipse for his speech. Id. at ¶ 129. To enter the Ellipse
itself, attendees were required to pass through magnetometers. Id. at ¶ 130.
Notably, from the approximately 28,000 attendees who passed through these
security checkpoints, the Secret Service confiscated hundreds of weapons and
other prohibited items, including knives or blades, pepper spray, brass knuckles,
tasers, body armor, gas masks, and batons or blunt instruments. Id. at ¶¶ 130–31.
Approximately 25,000 additional attendees remained outside the Secret Service
perimeter, thus avoiding the magnetometers. Id. at ¶ 132.
¶213 President Trump then gave a speech in which he literally exhorted his
supporters to fight at the Capitol. Among other things, he told the crowd:
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• “We’re gathered together in the heart of our nation’s capital for one very,
very basic reason: to save our democracy.” Id. at ¶ 135.
• “Republicans are constantly fighting like a boxer with his hands tied
behind his back. It’s like a boxer. And we want to be so nice. We want
to be so respectful of everybody, including bad people. And we’re going
to have to fight much harder.” Id.
• “Now, it is up to Congress to confront this egregious assault on our
democracy. And after this, we’re going to walk down, and I’ll be there
with you . . . .” Id.
• “[W]e’re going to walk down to the Capitol, and we’re going to cheer on
our brave senators and congressmen and women, and we’re probably
not going to be cheering so much for some of them. Because you’ll never
take back our country with weakness. You have to show strength and
you have to be strong.” Id.
• “When you catch somebody in a fraud, you’re allowed to go by very
different rules.” Id.
• “This the most corrupt election in the history, maybe of the world. . . .
This is not just a matter of domestic politics—this is a matter of national
security.” Id.
• “And we fight. We fight like hell. And if you don’t fight like hell, you’re
not going to have a country anymore.” Id.
¶214 Unsurprisingly, the crowd at the Ellipse reacted to President Trump’s words
with calls for violence. Indeed, after President Trump instructed his supporters to
march to the Capitol, members of the crowd shouted, “[S]torm the capitol!”;
“[I]nvade the Capitol Building!”; and “[T]ake the Capitol!” Id. at ¶ 141. And
before he had even concluded his speech, President Trump’s supporters followed
his instructions. Id. at ¶ 146. The crowd marched to the Capitol, many carrying
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Revolutionary War flags and Confederate battle flags; quickly breached the
building; and immediately advanced to the House and Senate chambers to carry
out their mission of blocking the certification of the 2020 presidential election. Id.
at ¶¶ 146–53.
¶215 By 1:21 p.m., President Trump was informed that the Capitol was under
attack. Id. at ¶ 169. Rather than taking action to end the siege, however,
approximately one hour later, at 2:24 p.m., he tweeted, “Mike Pence didn’t have
the courage to do what should have been done to protect our Country and our
Constitution, giving States a chance to certify a corrected set of facts, not the
fraudulent or inaccurate ones which they were asked to previously certify. USA
demands the truth!” Id. at ¶ 170.
¶216 This tweet was read over a bullhorn to the crowd at the Capitol, and
produced further violence, necessitating the evacuation of Vice President Pence
from his Senate office to a more secure location to ensure his physical safety. Id.
at ¶¶ 171–75.
¶217 President Trump’s next public communications were two tweets sent at 2:38
p.m. and 3:13 p.m., encouraging the mob to “remain peaceful” and to “[s]tay
peaceful” (obviously, the mob was not at all peaceful), but neither tweet
condemned the violence nor asked the mob to disperse. Id. at ¶ 178 (alteration in
original).
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¶218 Throughout these several hours, President Trump ignored pleas to
intervene and instead called on Senators, urging them to help delay the electoral
count, which is what the mob, upon President Trump’s exhortations, was also
trying to achieve. Id. at ¶ 180. And President Trump took no action to put an end
to the violence. To the contrary, as mentioned above, when told that the mob was
chanting, “Hang Mike Pence,” President Trump responded that perhaps the Vice
President deserved to be hanged. Id. President Trump also rejected pleas from
House Republican Leader Kevin McCarthy, imploring him to tell his supporters
to leave the Capitol, stating, “Well, Kevin, I guess these people are more upset
about the election than you are.” Id.
¶219 Finally, at 4:17 p.m., President Trump released a video urging the mob “to
go home now.” Id. at ¶ 186. Even then, he did not condemn the mob’s actions. Id.
at ¶ 187. Instead, he sympathized with those who had violently overtaken the
Capitol, telling them that he knew their pain. Id. at ¶¶ 186–87. He told them that
he loved them and that they were “very special.” Id. at ¶ 186. And he repeated
his false claim that the election had been stolen notwithstanding his “landslide”
victory, thereby further endorsing the mob’s effort to try to stop the peaceful
transfer of power. Id. at ¶¶ 186–87.
¶220 A short while later, President Trump reiterated this supportive message to
the mob by justifying its actions, tweeting at 6:01 p.m., “These are the things and
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events that happen when a sacred landslide election victory is so
unceremoniously & viciously stripped away from great patriots who have been
badly & unfairly treated for so long. Go home with love & in peace.” Id. at ¶ 189.
President Trump concluded by encouraging the country to “[r]emember this day
forever!” Id.
¶221 We conclude that the foregoing evidence, the great bulk of which was
undisputed at trial, established that President Trump engaged in insurrection.
President Trump’s direct and express efforts, over several months, exhorting his
supporters to march to the Capitol to prevent what he falsely characterized as an
alleged fraud on the people of this country were indisputably overt and voluntary.
Moreover, the evidence amply showed that President Trump undertook all these
actions to aid and further a common unlawful purpose that he himself conceived
and set in motion: prevent Congress from certifying the 2020 presidential election
and stop the peaceful transfer of power.
¶222 We disagree with President Trump’s contentions that the record does not
support a finding that he engaged in an insurrection because (1) “engage” does
not include “incite,” and (2) he did not have the requisite intent to aid or further
the insurrectionists’ common unlawful purpose.
¶223 As our detailed recitation of the evidence shows, President Trump did not
merely incite the insurrection. Even when the siege on the Capitol was fully
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underway, he continued to support it by repeatedly demanding that Vice
President Pence refuse to perform his constitutional duty and by calling Senators
to persuade them to stop the counting of electoral votes. These actions constituted
overt, voluntary, and direct participation in the insurrection.
¶224 Moreover, the record amply demonstrates that President Trump fully
intended to—and did—aid or further the insurrectionists’ common unlawful
purpose of preventing the peaceful transfer of power in this country. He exhorted
them to fight to prevent the certification of the 2020 presidential election. He
personally took action to try to stop the certification. And for many hours, he and
his supporters succeeded in halting that process.
¶225 For these reasons, we conclude that the record fully supports the district
court’s finding that President Trump engaged in insurrection within the meaning
of Section Three.