Trump's potential liability for Capitol riot faces major test in court

(CNN)A federal judge in Washington, DC, is considering for the first time whether former President Donald Trump is immune from liability related to his supporters attacking the US Capitol on January 6, 2021.

The major hearing on Monday is part of a trio of insurrection-related lawsuits seeking to hold Trump and others accountable at a time when the House select committee probing January 6 has aggressively investigated the political leaders who inspired the attack, and as the Justice Department is prosecuting more than 700 rioters for criminal offenses.

Judge Amit Mehta of the DC District Court is looking at key questions including whether Trump and Republican figures like Rep. Mo Brooks of Alabama can shield themselves from legal fallout because of the First Amendment or their stature as elected officials.

It is the first major test of whether civil litigation is a viable route to holding Trump accountable for the violence toward Congress, after he was acquitted by the Senate in his second impeachment trial last February.

A lawyer for Trump, Jesse Binnall, argued that everything Trump said while President -- including on January 6 as well as in a call to Georgia officials asking them to "find" votes in early 2021 and at campaign rallies -- is protected from any lawsuits, because it was all part of his official actions as President.

"You would have me ignore what [Trump] said in its entirety?" Mehta asked minutes into the hearing. The judge pointed to a Supreme Court case related to the Johnson and Nixon administrations that established the parameters of presidential immunity.

"To say that a speech before Congress is the equivalent to a campaign trail stump speech" doesn't appear to be what the Supreme Court had ruled on the boundaries of presidential immunity, Mehta said.

Democratic Rep. Eric Swalwell of California, 10 other House Democrats, and Capitol Police officers James Blassingame and Sidney Hemby brought the three lawsuits at issue on Monday.

The lawmakers say they were threatened by Trump and others as part of a conspiracy to stop the congressional session that would certify the 2020 presidential election on January 6, according to the complaints. And they argue that Trump should bear responsibility for directing the assaults.

Swalwell, who described his position in the case in an interview on CNN on Sunday, said he expects Monday's hearing to be long. He noted, however, that he and others will not be permitted into the courtroom because of the recent surge in Covid-19 cases. Instead, the participants will speak to the judge over videoconference.

If the judge rules in favor of Swalwell and others who have sued, the California Democrat said he expects "it's going to speed up, and hopefully we'll move to more depositions and evidence discovery very soon."

The police officers, in their lawsuit, say they were hit by chemical sprays and objects the crowd threw at them, like water bottles and signs, because Trump inspired the crowd.

"Defendant's followers, already primed by his months of inflammatory rhetoric, were spurred to direct action," the lawsuit from Blassingame and Hemby said. "Had Trump committed directly the conduct committed by his followers, it would have subjected Trump to direct liability."

Six additional lawsuits against Trump and others for their roles in the insurrection are also in front of the same court, but haven't reached the point of being argued yet.