Background: Rioters try to break through a police barrier at the Capitol on Jan. 6, 2021, in Washington. (AP Photo/John Minchillo, File). Inset: Then-President-elect Donald Trump speaks during a meeting with Republican governors at Mar-a-Lago, Thursday, Jan. 9, 2025, in Palm Beach, Fla. (AP Photo/Evan Vucci).
A federal judge has dismissed President Donald Trump”s claim that his actions taken during the Jan. 6 Capitol riot were official and thus protected by presidential immunity, delivering a major setback to the commander in chief.
Trump’s decisions that day — especially his speech to his supporters at the Ellipse in Washington, D.C. — were political in nature, U.S. District Judge Amit Mehta wrote in a 79-page order. As such, the consolidated civil cases acting as among the “last vestiges of litigation concerning the events at the United States Capitol on January 6, 2021” may continue.
The yearslong case saw a new wrinkle when the current Department of Justice attempted to make the U.S. government the defendant instead of Trump because — in its eyes — he was acting in an official capacity at the time. Such a substitution would save him from civil liability and result in the dismissal of the lawsuit altogether.
Trump also asked the Barack Obama appointee to reconsider a ruling that rejected his First Amendment defense, claiming a subsequent Supreme Court decision “clarified the law on incitement and confirms that the Ellipse Speech was protected political expression.”
The lawmakers suing him — including former California representative and current Oakland Mayor Barbara Lee — asked the judge to dismiss these efforts. And Mehta largely ruled in their favor.
“President Trump has not shown that the Speech reasonably can be understood as falling within the outer perimeter of his Presidential duties,” the judge wrote. “The content of the Ellipse Speech confirms that it is not covered by official-acts immunity.”
Considering the speech and the context surrounding it, Mehta turned to testimony from Cassidy Hutchinson, then-assistant to White House Chief of Staff Mark Meadows.
“Hutchinson was with President Trump immediately before the Ellipse Speech,” the judge recounts. “She described him as angry that the rally space was not full of spectators, and she heard him complain about the Secret Service setting up magnetometers, or ‘mags,’ that were preventing people who possessed weapons from entering the rally.”
Hutchinson, Mehta recalled, overheard Trump “say something to the effect of, ‘You know, I don’t F’ing care that they have weapons. They’re not here to hurt me. Take the F’ing mags away. Let my people in. They can march to the Capitol from here. Let the people in. Take the F’ing mags away.’”
He then opines, at length:
Hutchinson’s recollections of January 6 heighten the plausibility that President Trump’s Ellipse Speech contained words of incitement. If assumed true—and the President disputes their veracity—at a minimum, they establish that the President knew that some supporters in the crowd had weapons and that those weapons might be used to cause harm, though not to him. No longer is the President’s knowledge about his supporters’ willingness to engage in imminent violence based merely on complaint allegations about historical facts preceding January 6. It is now corroborated by a first-hand account of his state of mind on the day itself, moments before addressing the crowd. His statements to “Take the F’ing mags away” and that “They’re not here to hurt me” may not amount to a confession. But those words support the reasonable inference that he meant for his Ellipse Speech to be heard as “an implicit call for imminent violence or lawlessness.” His remarks on January 6 therefore plausibly were inciting words that are not protected by the First Amendment.
The Washington, D.C., jurist also pointed to a call Trump made to Georgia Secretary of State Brad Raffensperger on on Jan. 2, 2021, during which the president reportedly told him he “need[ed] 11,000 votes” to win the state.
“These are the words of an office-seeker imploring a state official to alter the outcome of Georgia’s election, not those of an incumbent President acting in his official capacity,” Mehta wrote.
The judge turned to an argument made by Trump in which the president compared the Ellipse speech to a hypothetical performance by a popular rapper whose concert “leads to fan violence.” In this hypothetical, the rapper knows his song lyrics “are inspiring young people to ‘act emotionally and sometimes violently,’” but when he performs and says things like “Fight the Man!” and “Fight the Establishment,” chaos and violence ensues.
According to the judge’s recounting, Trump “fears that, under the court’s ruling,” one could argue the rapper’s speech “constitutes incitement to violence” and this breaks from the First Amendment’s right to expression. Mehta wasted little time in batting down this line of thinking.
“[H]ere is what is missing from the President’s hypothetical. There is no contention that, for weeks before the concert, the rapper told his fans that the Establishment had taken something valuable from them through fraud and deceit. No assertion that the rapper knew his fans had prepared to act violently on that very day (including by bringing weapons to the show) to reclaim what was taken from them,” he writes. “Only if those facts are included does the rap concert begin to resemble January 6, and only then do the artist’s song lyrics and exhortation to ‘Fight like hell’ mirror the Ellipse Speech.”
Though Mehta ruled against Trump, the judge was clear that his decision “is not a final pronouncement on immunity for any particular act” and that Trump may still “reassert official-acts immunity as a defense at trial.” Still, the “burden will remain his and will be subject to a higher standard of proof.”
