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During the days following the attempted insurrection on Jan. 6, with both Democrats and Republicans condemning the riot, it seemed possibleeven likelythat Congress might authorize a broad bipartisan investigation of what happened to foster the violence that day. Five months later, though, that hope feels distant. On May 28, the Senate failed to break a filibuster to create an independent commission on the causes of the riot, and overall, the outlook for a robust, definitive investigation seems grim.

In the absence of an outside inquiry, Congress has pursued a variety of investigative approaches. Individual House committees have begun investigations, and Speaker of the House Nancy Pelosi may decide that the best way forward is simply to have those panels continue that work. She has also floated forming a select committee to investigate the attack or designating one specific panel to take the lead in the inquiry. But whatever Pelosi supports, it will likely face opposition from House Republicans.

For the Senates part, the strategy has been clearer from the start: the Senate Rules and Administration Committee and the Senate Homeland Security and Governmental Affairs Committee conducted a joint probe, and this week, they released their own joint report on the events of Jan. 6. The report is the first public document produced by committees in either chamber of Congress investigating the riotand it may yet be the only one. Elsewhere on Lawfare, Billy Ford has provided an in-depth summary of the document. Here, we take a look at what the report does and doesnt cover, and what those gaps say about our understanding of what happened on Jan. 6.

The document goes deep on what went wrong on Jan. 6but its less deep on the question of why things went wrong. Its focused on a relatively narrow timeframe, digging into how various agencies and the congressional bureaucracy fumbled the ball in the weeks before Jan. 6 and on the day itself. But it doesnt broaden its scope to examine the structural factors that might have led those organizations to fumble the ball, or examine the role of President Trump in whipping up rioters through his lies about a stolen election. Some of these limitations likely stem from the bipartisan nature of the report: Republicans, reporting from the New York Times and Washington Post suggests, were none too eager to delve into Trumps responsibility for the violence. And other limitations trace back to the fact that this report is the product of an investigation by only one chamber of Congress, with limited cooperation from key actors in the House of Representatives.

The document, in other words, is both a useful recordand profoundly incomplete.

The committees sketch out a grim picture of the cascading institutional failures both within and beyond Congress. The failures within the congressional bureaucracy laid out by the report are severaland began even before Jan. 6. The U.S. Capitol Police (USCP) did not, the report makes clear, effectively use the intelligence gathered by its three intelligence-related components to track the threat to the Capitol Complex. The report identifies sharing intelligence information as a particular weak spot, both within and beyond the USCP. The entity with primary responsibility for distributing intelligence reports, the Intelligence and Interagency Coordination Division (IICD), produced conflicting products prior to Jan. 6, and some key informationincluding a now-famous bulletin sent out from the FBIs Norfolk field office on Jan. 5, noting internet posts describing potential violence the next day did not make its way to all relevant parties within the USCP.

Intelligence agencies other than the Capitol Police also failed to communicate the seriousness of a potential attackeven as the planning for that attack was happening, in part, in plain sight on social media. The bulletin from the FBIs Norfolk field office appears to be the only intelligence document produced by the bureau warning of the danger. The Department of Homeland Security, which has its own intelligence analysis arm, meanwhile, never produced any document flagging the potential violence.

The committees seem to be keenly aware of just how absurd it is for executive agencies to claim ignorance of threats posted prominently online. The report quotes one official at the Department of Homeland Securitys Intelligence & Analysis unit saying that he was not aware of any known direct threat to the Capitol before January 6, before dryly noting that this was despite many online posts mentioning violence.

The report also details failures by the USCP to develop sufficient operational and staffing plans for Jan. 6, as well as inadequate training and equipment for officers. On Jan. 6 itself, the report details, there were significant communication failures within the USCP, with rank-and-file officers receiv[ing] little-to-no communication from senior officers during the attack and at no point did USCP leadership take over the radios to communicate with front-line officers.

But the failures outlined in the report are not limited to the USCP. Among the most troubling sections of the report is the discussion of why it took as long as it did for National Guard troops to arrive at the Capitol after USCP requested support. The members of the Capitol Police Board, the reports states bluntly, did not understand the statutory and regulatory authorities of the Capitol Police Board.

Michael Stenger, the former Senate Sergeant-at-Arms, described the board as a clearinghouse of information rather than as an operational bodydespite the fact that the board has responsibility for important operational decisions. The board may request support from executive departments and agenciesincluding the National Guardbut none of the Capitol Police Board members on Jan. 6 could fully explain in detail the statutory requirements for requesting National Guard assistance and there was no formal process for such requests. Board members confusion about the process extended to uncertainty about how many of their votes were required to approve such a request. Stenger asserted that unanimity was needed, while Architect of the Capitol J. Brett Blanton (with whom the possibility of requesting Guard support prior to Jan. 6 was not discussed) posited that only a majority vote was necessary. (Notably, the report itself does not clarify the answer to this question, but among its recommendations is to empower the USCP chief to make independent requests for Guard assistance in emergencies.)

The report outlines how lack of clarity between the Defense Department and the Capitol Police over the procedures for requesting deployment of the Guard contributed to the crucial delays in the Guards arrival on the sceneand confusion and delays at the Pentagon resulted in a three-hour gap between when Capitol Police first requested the deployment of the Guard and when the Guard actually showed up at the Capitol. And excerpts from committee interviews with Christopher Miller, the acting secretary of defense on Jan. 6, and Ryan McCarthy, secretary of the Army on that date, suggest that the Pentagon was skittish about deploying military forces to the Capitol after the debacle of the National Guard deployment to Washington, D.C. in summer 2020 to respond to the protests over George Floyds death.

Meanwhile, the Justice Department, despite having been designated by the White House as the lead agency in charge of coordinating operations to secure Congress that day, appears to have been almost entirely absent from security planning or response. According to one Pentagon official interviewed by the committees, the department failed to conduct any interagency rehearsals or have an integrated security plan, as DOJ did during the summer 2020 protests when it had also been designated as the lead federal agency. Former Acting Defense Secretary Miller told the committees that he convened calls between agencies in the midst of the chaos because the Justice Department was nowhere to be found: [S]omebody needed to do it. This failure is all the more notable because the Justice Department itself denied to the committees that it was ever placed in chargeand, according to the report, has yet to fully comply with the Committees requests for information.

So the report provides a damning account of security and intelligence failures across the board. But theres also a lot that the document does not do. In emphasizing the immediate period leading up to Jan. 6, it does not discuss a longer history of what created the conditions that allowed for the operational failures. The report does quote one USCP officer as observing that 1/6 was not only a result of a few months of intelligence not being analyzed and acted upon, but more so decades of failing to take infrastructure, force protection, emergency planning, and training seriously. But the report does not address how the USCP was allowed to fall short for those decades. Is a lack of congressional oversight to blame and, if so, what changes to Congresss own approach to holding its security bureaucracy accountable are needed? The report offers no answers to those important questions.

It is also telling that the report stops short of recommending a full restructuring of the Capitol Police Board, despite previous efforts and recent bipartisan interest in doing so. It is widely believed that congressional leaderswho nominate two of the members of the board, the House and Senate Sergeants-at-Arms, to their positionsare reluctant to change the forces governance structure. But as Congress moves forward, it must consider whether the current bureaucratic arrangements are the most effective ones for ensuring the Capitol Hill community is safe, for the thousands of members and staff who report to work there each day.

And the report demonstrates the inherent shortcomings of an investigation done by, and recommendations for reform made by, committees in a single chamber of Congress. Take, for example, the relatively brief discussion of shortcomings in the security notifications received by senators and Senate staff. Primary responsibility for security notifications to Senators and Senate staff, the report notes, resides with the Senate SAAwho did not send any Senate-wide email alerts during the attack itself. The USCPs email notifications were more numerous, but more than half of them were sent prior to the breach of the Capitol; the USCP also sent the same message, directing individuals to shelter in place, four times between 2:18 pm and 6:44 pm without adding any additional information or context. The report is silent, however, on the experience of House members and staff with House-specific communications. Indeed, while the House Sergeant-at-Arms office is included on the list of entities from which current and former officials'' participated in interviews as part of the probe, the office itself did not comply with the Senate committees request for information.

While the report is damning in its description of how the intelligence agencies did not effectively seek out and use intelligence in advance of the riot, it doesnt provide answers to some of the obvious questions that arise from that description. Why, for example, was the bulletin from the Norfolk field office the only document the FBI produced warning of danger on Jan. 6?

Or, take the statement by then-FBI Assistant Director Jill Sanborn, quoted in the report, that the FBI was not aware of threats made on social media before Jan. 6 because we cannot collect First Amendment-protected activities in the absence of a preexisting investigation. When Sanborn made this comment at a Mar. 2 Senate hearing, it was the subject of a great deal of skepticism from commentators familiar with the FBIs investigatory practices. And indeed, internal FBI guidelines state that FBI employees may conduct Internet searches of publicly available informationthe definition of which would include public social media postsprior to the initiation of a formal investigation. But the Senate report quotes Sanborn without addressing this discrepancy or explaining what the bureaus authorities actually are when it comes to monitoring online posts, even though this would seem to be an important factor in understanding the FBIs failure to prepare for Jan. 6.

This points to another, deeper hole in the committees analysis. The report discusses egregious failures by various agencies, but it doesnt examine the larger structural factors that created an environment where those failures could take place. Why might it be that the FBI, Department of Homeland Security and Capitol Police were so willing to discount the potential threat posed by a group of largely white Trump supportersespecially compared to the federal governments aggression toward peaceful Black Lives Matter protestors during the summer of 2020? To what extent did they overlook that danger because they did not want to cross the president? For that matter, to what extent was the Justice Departments strange silence during the riot itself a result of the departments desire to placate the president?

These questions will be difficult to answer without a more sustained inquiry into, among other things, the role of Trump and the White House in the events surrounding Jan. 6. And that hurdle may be exactly why they arent addressed in this report. The document is a product of a bipartisan investigation by two Senate committeesand according to the New York Times, that bipartisanship shaped what the committees did and didnt include. As the Times notes, the report does not chart [Trumps] actions or motivations, state that his election claims were false or explore the implications of a president and elected leaders in his party stoking outrage among millions of supporters." This explains one of the odder design choices in the reports presentation: Trumps remarks at the Ellipse immediately preceding the riotAnd we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.are included in an appendix at the end of the report, but they are not discussed at any length in the body of the document. They are referenced with little detail as part of the timeline of events; President Trump began his address just before noon, the report notes, and during the next 75 minutes, the President continued his claims of election fraud and encouraged his supporters to go to the Capitol.: Essentially, the report just tries to stay as far away from Trump as possiblea tricky task when chronicling a riot that the president sparked with his rhetoric and which he egged on while it was happening.

Given these unanswered questions, Congress must decide what to do next. The Senate committees that produced this report have pledged to keep investigating, including continu[ing] to pursue responses from the agencies, offices, and individuals who did not cooperate with the committees prior requests. But recent experience shows that recalcitrant actors can effectively slow walk committees efforts to obtain information.

The lack of full cooperation from the House Sergeant-at-Arms also illustrates the need for the House to continue its own inquiry. Up to now, this investigative work has involved hearings by four separate panels (the Legislative Branch subcommittee of the Committee on Appropriations; the Committee on Oversight and Reform; the Committee on Homeland Security; and the Committee on House Administration) and letters sent singly or jointly by these committees and five more (House Intelligence; House Judiciary; House Armed Services; and the Subcommittees on the Department of Defense and on Interior, Environment and Related Agencies of the House Appropriations Committee). The dispersed nature of the Houses investigationparticularly in contrast to the joint committee nature of the Senatesis one reason many have pushed for Pelosi to create a select panel in the House to serve as focal point for the inquiry. These calls have intensified in the wake of Senate Republicans tanking legislation to create an independent commission to investigate the insurrection to advance in the Senate.

While supporters of a commission have made clear that this report is not a substitute for an independent inquiry, getting one approved will remain a steep uphill battle. Senate Majority Leader Mitch McConnell took the occasion of the reports release to reiterate his opposition to such an inquiry, saying that he was confident in the ability of existing investigations to uncover all actionable facts about the events of Jan. 6. The Senate report does show that existing congressional committees are capable of serious investigation and reflection on what happened on Jan. 6but it also demonstrates the limitations of those investigations as they currently stand.

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The Successes and Limitations of the First Congressional Report on Jan. 6 - Lawfare

As detailed in a recent alert,1 U.S. District Judge Dabney L. Friedrich, in Alabama Association of Realtors v. U.S. Department Of Health And Human Services,2 found that the Centers for Disease Control and Prevention (CDC) did not have authority to impose a nationwide eviction moratorium (CDC Order) under the Public Health Service Act (PHSA). Since the decision, there has been a spate of activity in that case and throughout the country regarding the CDC Order and its enforceability. With the CDC Order set to expire on 30 June 2021 and increasingly encouraging national COVID-19 data, it seems less likely that the CDC Order will remain in place for an extended period. Individual states, however, may ultimately keep certain pandemic protection measures in place in order to protect residential tenants. While landlords and tenants await an official decision from the CDC about a further extension of the moratorium, courts will continue to rule on the enforceability of the CDC Order.

In Alabama Association of Realtors, Judge Friedrich determined that while COVID-19 created a serious public health crisis with unprecedented challenges for public health officials, the PHSA did not grant the CDC with the legal authority to impose a nationwide eviction moratorium.3

As expected, the U.S. Department of Health and Human Services (DHHS) immediately appealed to the D.C. Circuit Court of Appeals.4 In addition, DHHS asked Judge Friedrich, on an emergency basis, to stay her order pending appeal.5 Given its immediate appeal and emergency motion, DHHS confirmed that, despite the improved public health outlook, it remains resolute in its defense of the nationwide eviction moratorium.

On 14 May 2021, after full briefing, the trial court granted DHHSs emergency motion to stay pending appeal. While Judge Friedrich found that DHHS had little chance of success, she nonetheless granted the motion after determining that there was sufficient risk of irreparable harm if the CDC Order does not remain in place.6

Following the decision, both parties filed briefs in the trial court and the D.C. Circuit. The plaintiffs filed a notice of their intention to not only file a motion in the D.C. Circuit, but also that they intend to file an application to vacate the stay in the Supreme Court of the United States,7 while DHHS filed its opposition in both courts arguing that the plaintiffs challenge to the CDC Order is meritless and that the balance of equities favors the government.8

On 2 June 2021, the D.C. Circuit declined to lift the stay, finding that the government made a sufficient showing that it is likely to succeed on the merits.9 In response, the plaintiffs asked the U.S. Supreme Court to stay enforcement of the policy during a further appeal. Submitting an application to Chief Justice John Roberts, who handles emergency appeals from the D.C. Circuit on the courts so-called shadow docket, the plaintiffs urged the justices to intervene and lift the stay of the CDC Order because the stay will prolong the severe financial burdens borne by landlords under the moratorium and [the] governments sweeping position is contrary to the text and structure of the statute.10 The shadow docket includes cases that do not proceed via the Supreme Courts normal briefing and argument process. The speed with which the Supreme Court and D.C. Circuit handles the cases could impact any further extension to the CDC Order. Also, with the CDC Order set to expire on 30 June 2021, there is a chance that the pending appeal could conceivably become moot before there are any further rulings from any court.

Another court addressed the CDC Order as impacted by a new Consumer Financial Protection Bureau (CFPB) rule. In April 2021, the CFPB introduced a new interim rule to, among other things, help residential tenants facing eviction, requiring debt collectors to provide written notice to delinquent tenants informing tenants that they may be eligible for relief under the CDC Order. The rule states that the disclosure of the CDC Order must be made in any jurisdictions where the CDC Order applies. A group of property managers filed suit in the Middle District of Tennessee challenging this rule as violative of their First Amendment rights where it compelled false speech and sought a temporary restraining order to block it.

In The Property Management Connection, LLC v. The Consumer Financial Protection Bureau,11 the court first noted that several federal courts, including the 6th Circuit,12 have determined that the CDC exceeded its authority in issuing the CDC Order, thus making the CDC Order inapplicable. The court then addressed the CFPB rule, determining that by its own terms it only applies during the effective period of the CDC Order, only to tenants to whom the CDC Order reasonably might apply, and only in jurisdictions in which the CDC Order applies.13 The court further highlighted that the CFPB itself opined that the rule does not apply where the CDC Order is inapplicable. Thus, the court concluded that since binding 6th Circuit precedent invalidates the CDC Order, the CFPB rule, by its own terms, does not apply. Because the CDC Order did not apply, the plaintiffs claimed First Amendment violation was not viable, according to the court, because the inapplicable rule compels no speech. Therefore, the court found that the plaintiffs could not demonstrate a likelihood of success on the merits, and it denied the requested relief.

In the Middle District of Florida, a group of realtors with more than 200,000 members and a real estate business filed their own federal lawsuit challenging the CDC Order on 17 May 2021. Like earlier suits, the plaintiffs in Florida Association of Realtors, Inc. v. Centers for Disease Control and Prevention14 contend that the CDC overstepped its authority in issuing a national eviction moratorium. The plaintiffs allege that the CDC does not have the authority to be the landlord-in-chief and that estimated losses from the CDC Order may exceed tens of millions of dollars.15 At this stage, it is unclear whether the CDC will respond to the complaint before deciding whether to extend the moratorium.

Given the DHHSs aggressive defense of the CDC Order in Alabama Association of Realtors, it seems likely that the CDC may be planning to further extend the moratorium even where numerous courts have determined that it does not have the authority to do so. In any event, landlords and tenants alike will be paying close attention to the CDCs decision, as cases addressing the CDC Order will likely take center stage. Regardless of its prospects for longevity, the CDC Order remains in place in most jurisdictions, but its days seemed numbered. Also, no matter the fate of the CDC Order, landlords and tenants will need to monitor state-by-state restrictions. Stay tuned for further updates.

1 See Sean R. Higgins, Edward J. Mikolinski, & Scott G. Ofrias, COVID-19: Federal Judge Rules CDC Not Authorized To Issue Nationwide Eviction Moratorium, K&L GATES HUB (May 10, 2021).

2 Memorandum and Order on Plaintiffs Motion for Expedited Summary Judgment, Defendants Motion for Summary Judgment and Partial Motion to Dismiss, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., 1:20-cv-03377 (D.D.C. May 5, 2021).

3 Id.

4 Notice of Appeal, Ala. Assn of Realtors, 1:20-cv-03377. Although the emergency motion appears to have been filed on behalf of all defendants, the memorandum opinion only addresses DHHS.

5 Emergency Motion to Stay, Ala. Assn of Realtors, 1:20-cv-03377.

6 Judge Friedrich analyzed the four factors necessary to grant a stay: (1) whether the stay applicant has made a strong showing that he or she is likely to succeed on the merits, (2) whether the applicant will be irreparably injured absent a stay, (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding, and (4) where the public interest lies. Judge Friedrich found that while DHHS did not make a strong showing it was likely to succeed, the court determined that DHHS made a sufficient showing as to the other three factors, and the magnitude of these additional financial losses [if a stay is imposed] is outweighed by DHHSs weighty interest in protecting the public. Memorandum Opinion regarding Defendants Emergency Motion to Stay, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., 1:20-cv-03377 (D.D.C. May 14, 2021) at 9.

7 Notice, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., 1:20-cv-03377 (D.D.C. May 17, 2021).

8 Response in Opposition, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., No. 21-5093 (D.C. Cir. May 24, 2021).

9 Order, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., No. 21-5093 (D.C. Cir. June 2, 2021).

10 Application (20A169) to vacate stay, Ala. Assn of Realtors v. U.S. Dept of Health & Hum. Servs., No. 20A-____ (U.S. June 3, 2021).

11 3:21-cv-00359 (M.D. Tenn. 2021).

12 Tiger Lily, LLC v. U.S. Dept of Hous. & Urb. Dev., 992 F.3d 518 (6th Cir. 2021). In this case, the court also found that defendants had little chance of success on appeal, which was enough to deny the stay. That case remains pending.

13 Memorandum Opinion of the Court, The Prop. Mgmt. Connection, LLC v. The Consumer Fin. Prot. Bureau, 3:21-cv-00359 (M.D. Tenn. May 14, 2021) at 6.

14 8:21-cv-01196-WFJ-SPF (M.D. Fla. 2021).

15 Id.

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COVID-19: Moratorium Madness: Will Challenges to the Eviction Order Force the CDC's Hand? - JD Supra

That may be an overstatement. Mr. Wizner, who runs the A.C.L.U.s free speech project, has represented the National Security Agency whistle-blower Edward Snowden and rattled off important cases his lawyers handled. But FIRE, he acknowledged, has taken a strong lead on campuses, where so many consequential battles are fought.

FIRE does not have the same tensions, Mr. Wizner said. At the A.C.L.U., free speech is one of 12 or 15 different values.

Traditionally, the A.C.L.U.s state affiliates monitor and argue free speech cases, but in recent years some shied from such fights. Here are a few examples:

In 2015, University of Missouri students protested racism and established an encampment in a campus quad. When a student journalist tried to take photos and talk to protesters, students and a journalism professor physically blocked the reporter from doing so. The A.C.L.U. of Missouri applauded the courageous leadership of student activists and faculty members, and two national A.C.L.U. officials wrote columns about the protests. They did not mention First Amendment rights.

Four years later at the University of Connecticut, two white students walking home late at night loudly repeated a racial slur. In the ensuing uproar, the university police arrested and charged the students with ridicule on account of race.

The A.C.L.U. of Connecticut demanded that the university hire 10 Black faculty and staff members and require a freshman course on ending racism on campus. It made no mention of the arrests, other than to opine that the police force is an inherently white supremacist institution.

Two days later, Mr. Cole issued a corrective: The students conduct is not criminal, he stated. The First Amendment protects even offensive and hateful speech.

Even the New York Civil Liberties Union, traditionally an independent-minded A.C.L.U. affiliate that has produced several national executive directors and stood at the forefront in defending free speech cases, did not want to talk about those issues. A spokeswoman for its executive director, Donna Lieberman, said, We dont feel well have anything to add.

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Once a Bastion of Free Speech, the A.C.L.U. Faces an Identity Crisis - The New York Times

Throughout my life, conservatives have believed the U.S. Constitutionmeans what its authors intended. While it can sometimes be challenging to apply the document's verbiage to modern times, conservatives know that when the founders wrote, "Congress shall make no law" they meant that, "Congress shall make no law." Easy peasy, as the saying goes.

By contrast, liberals have often championed a"living and breathing"Constitutionone that evolves with the times. They don't mean proper change via amendment, but through "enlightened" court interpretations. Like shamans, liberal justices don't obsess over the founders' intentions, but on truths found in penumbras. Go figure, but their divinations usually conform to their own biases.

In a bizarre twist, conservatives are now sounding like liberal jurists rather than traditionalists on some key constitutional questions. Let's take theFirst Amendment, which the founders viewed with particular significance given that they placed it, well, first in the Bill of Rights. These days, conservatives are busy reinterpreting its meaning and have been quite creative with their new interpretations and divination.

For instance, Florida's Republican Gov. Ron DeSantis recently signed alawthat applies governmental moderating standards to social-media companies. It fines tech companies if they suspend political candidates prior to elections, lets the state attorney general and even private citizens sue these companies if they believe they've been treated unfairly, and gives online publishers a list of enforceable editorial conditions.

That's obviously a government restriction on speech given that the government is mandating that private publishers behave in a certain way. Yet writing inAmerican Spectator, the Heartland Institute's S.T. Karnick has discovered such a novel method of interpreting that law that he would have made former Justice Thurgood Marshall, the late justice who was known for his creative constitutional gyrations, quite proud.

"Defenders of Big Tech routinely argue that these companies have a right to do whatever they want because they are not government entities. That is false," Karnickwrote. "The fact that they are in the private sector does not change the definition of the word" censorship. If we erase the distinction between private censorship (which we all do) and government censorship, however, we essentially erase the First Amendment.

The Constitution forbids Congress specifically from regulating private speech, but then the 14thAmendment applied most of the Bill of Rights to the states and their governments. Karnick alsoarguesthat the 10thAmendment gives Florida the right to exercise its authority on this basic-rights issue, which is a rather odd position for a conservative.

If the10thAmendment, which vests many powers in the states rather than the federal government, can be justified to obliterate constitutionally protected rights, then California can ban firearm ownership, despite what the Second Amendment says. If you don't think rights should apply to tech companies whose decisions anger you, then they might not apply when your decisions anger others.

The"Fairness Doctrine,"which mandated equal time for political views on "public" airwaves, offers a template for what conservatives now are suggesting. Its elimination allowed for the proliferation of conservative talk radio, given that such imbalanced programming previously was verboten. What would happen if the Biden administration could force broadcast outlets to balance the views of Mark Levin and Tucker Carlson? Take a guess.

Many of these conservatives are like liberals in another important way. They seek to control private-sector companies because they don't like how they operate. For instance,David Marcuscomplained in a Fox News column last week about the media's Johnny-come-lately coverage of the theory that the coronavirus emerged from a Chinese laboratory.

Yes, the media mostly treated that story as a conspiracy when Donald Trump had postulated itbut are treating it seriously now that Trump is gone. So what? Publications can print whatever they choose, some do a lousy job and all of them are biased. My conclusion is the media should learn from its mistakes, but Marcus' take is more draconian.

"Nobody is checking the fact checkers, and it is time that changed," hewrote. "It's time for government to regulate the fact checking industry." He named Politifact and Associated Press as examples of organizations that need government oversight as they advise social mediaeven though they are journalism organizations.

Marcusclaimsthe First Amendment forbids regulation of "in-house" fact checkers, but he carves out the exception for independent checkerssomething he appears to have pulled from thin air just like the living-and-breathing jurists. "This may seem antithetical to traditional conservative values of small government," he says, but we ought not be "slaves to orthodoxy."

Perhaps the Biden administration should appoint a regulator to fact-check Marcus' writing for the next few weeksand then he can report on the experience. Thanks to First Amendment "orthodoxy" that won't happen, but it's time for conservatives to grow a thicker skin and stop attackingthe constitutional protections all of us enjoy.

This column was first published in The Orange County Register.

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Conservative Attacks on 'Big Tech' Are Turning the Constitution on Its Head - Reason

In February, Rep. Bennie Thompson, chairman of the House Committee on Homeland Security, sued President Donald Trump, his lawyer Rudy Giuliani, and the far-right extremist group the Oath Keepers, among others, for damages arising from the Jan. 6 Capitol insurrection. The lawsuit, brought by the NAACP and soon joined by 10 other members of Congress who were present in the Capitol that day, alleged violations of 42 U.S.C. 1985(1), a Reconstruction-era statute creating civil liability for conspiracies that prevent public officials from holding any office or discharging any duties.

Last week Trump, Giuliani and the Oath Keepers filed their motions to dismiss. The defendants raise a variety of arguments in the motions, some of which are peripheral, speculative or simply incoherent. But the core of the defenses for Trump and Giulianithat the pair were exercising their First Amendment rights in their statements up to and during Jan. 6, and that Trump has absolute immunity for official actions taken during his presidencyare formidable. The lawsuit will likely continue in some form, but its certainly possible that Thompson v. Trump will become Thompson v. Oath Keepers before long.

Presidential Immunity

As one of us argued when the lawsuit was first brought, Trumps strongest argument is that he enjoys absolute civil immunity for actions taken in his official capacity as president. As the Supreme Court explained in Nixon v. Fitzgeraldand as Trumps brief emphasizesformer presidents are entitled to absolute Presidential immunity from damages liability for acts within the outer perimeter of [their] official responsibility. The importance of immunity for official acts of the president, and executive branch officials, is further reflected in the Westfall Act, a statutory tort immunity for federal employees, which Trump argues also bars the suit on the grounds that the allegations arose out of his allegations of political speech, clearly within the scope of his employment.

Presidential immunity is not unbounded. In Clinton v. Jones, another case that Trump cites, the Supreme Court permitted a lawsuit against a sitting president for purely private acts taken largely before President Clinton assumed office. The question, then, isassuming that Jones could be extended to actions taken taken wholly during a presidents stay in officewhether Trumps repeated lies about the 2020 election and his inflammatory rhetoric at the Stop the Steal rally were within the outer perimeter of his office. In other words, the court might have to decide if the outer perimeter encompasses remarks that included If you dont fight like hell youre not going to have a country anymore and We will never give up, we will never concede.

There is no straightforward test for the boundaries of presidential immunity under Fitzgerald. Rather, the Supreme Court has applied a functional approach that stresses the diversity of the presidents duties and responsibilities and the need to preserve as much latitude as possible for the presidents functioning. As the Supreme Court wrote in Fitzgerald, Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve. Thus, even illegal actions do not necessarily fall outside the realm of official duties.

Here, Trumps brief invokes the recent history of election challenges by federal officials to argue that [p]ost-election challenges are not unusual. In a lengthy introduction, Trump points to several instances of Democratic politicians challenging the validity of elections. Of course, these comparisons miss important contextmost obviously, the scope and severity of Trumps attacks on the democratic process and the political disturbance that it caused.

But here Trumps tendency to believe his own lies may paradoxically strengthen his argument, as it did during his first impeachment: By many accounts Trump really did (and still does) believe that the election was stolen. Delusional and baseless as that belief was (and is), Trump appears to have been sincere in believing that questioning the election was necessary to preserve, protect and defend the Constitution of the United States. In his motion, Trump explicitly argues that the President questioning whether election procedures comported with the Constitution and holding a rally for those who also were concerned with fair processare in fact Presidential duties as the Constitution requires that the President preserve, protect, and defend the Constitution of the United States... and take Care that the Laws be faithfully executed[.] Trumps understanding of his constitutional obligations was a perversion of those very obligationswhich was the core of both of his impeachmentsbut behavior grounded in a perverse understanding of an official duty may still remain an official duty.

The First Amendment

Even if Trumps immunity argument fails, his motion to dismiss makes a colorable argument that his rhetoric, however reprehensible, was constitutionally protected speech. And for Giuliani, who as a private citizen cannot claim immunity, the First Amendment is his strongest defense.

As with all cases involving speech that leads to violence, the key case here is Brandenburg v. Ohio: The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action (emphasis added). Imminence is a vague term, but the substantial case law devoted to its elaboration has made clear that there is a high bar for punishing speech on the grounds that it leads to violence.

The Brandenburg test applies to civil cases as well. For example, Trump cites NAACP v. Claiborne Hardware Co. (an ironic detail, given the NAACPs leading role in bringing this lawsuit), in which the Supreme Court unanimously overturned a Mississippi Supreme Court decision finding an NAACP that boycotted businesses in Claiborne, Mississippi, liable for lost business. Although the field secretary of the NAACP chapter, Charles Evers (who, in another twist, endorsed Trump 50 years later) reportedly told a large gathering, If we catch any of you going in any of them racist stores, were gonna break your damn neck, the Supreme Court recognized that the speech was protected under Brandenburg because [a]n advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. Trump cites the case to underscore the Supreme Courts position that speech on issues of public matters sits at the highest rung of the hierarchy of First Amendment values.

Of course, there are important differences between the facts of Brandenburg and Claiborne on the one hand and those of Jan. 6 on the other. Most importantly, in neither Brandenburg nor Claiborne Hardware did violence immediately following the speech at issue; on Jan. 6 it did. Indeed, as the court made clear in Claiborne Hardware, [i]f that language had been followed by acts of violence, a substantial question would be presented whether Evers could be held liable for the consequences of that unlawful conduct. By contrast, Trump ended his Jan. 6 speech around 1:10 p.m., telling his supporters, Were going to the Capitol, and his supporters had broken windows to enter the Capitol at 2:30 p.m.

Ultimately, determining whether a causal connection exists between Trumps and Giulianis speech and the Capitol riot will depend on a careful examination of both the speech and the larger context. Here both sides have plausible arguments. Trump and Giuliani argue in their motions that the majority of their rhetoric was peaceful; Trump, for example, points to his encouragement to the crowd to peacefully and patriotically make your voices heard. And Giuliani also argues that even his most inflammatory rhetoric was, all things considered, mild. His motion describes his now-infamous call to trial by combat as clearly hyperbolic and not literal[.] In truth, from Giuliani it does seem like just one more example of his trademark over-the-top, octogenarian puffery.

But however Trump and Giuliani try to spin their participation in the Jan. 6 rally, this was not the case of some isolated rabble-rousers ranting on a street corner. The president of the United States and his chief lawyerhimself a world-famous public figure and one-time leading presidential candidateused flagrant lies to rile up hundreds of people, many of them armed members of extremist militias, to march down to the Capitol and express their displeasure at the peaceful transition of power. Since Jan. 6, some rioters, including the QAnon Shaman, have even argued in separate criminal proceedings that they would not have stormed the Capitol but for the specific words of the then-President. As one Capitol rioters defense lawyer said in court, The president of the United States of America was telling citizens something evil has happened and you all have to go fix it.

Trump points to the unique features of the situation as a reason to extend even stronger First Amendment protections to their speech. As one of the cases that Trump cites makes clear, political speech is entitled to the fullest possible measure of constitutional protection. And public figures, and the president in particular, can plausibly argue that courts should be particularly careful not to chill their speech, in part because of the same separation-of-powers concern that underlies presidential immunity and in part because of the unique role that presidential communication plays in American democracy.

Theres no obvious answer to the First Amendment arguments in this case, not least because of the profoundly unprecedented nature of what occurred on Jan. 6. The court may be able to avoid a difficult First Amendment analysis in Trumps case if it finds that the lawsuit must be dismissed on presidential immunity grounds. But since immunity is not an option for Giuliani, the court will likely have to engage with the First Amendment at least with respect to him.

Statutory Elements

Constitutional issues aside, Thompsons suit raises standard issues of statutory interpretation and civil procedure. Here Trump, Giuliani and the Oath Keepers make a wide variety of arguments. Some of these are fairly technicalTrump, for example, argues that members of Congress cant sue under 1985 because, as elected representatives, they are neither officers under the United States nor do they hold office under the United States. And the Oath Keepers argue that members of Congress cant sue under 1985 because the Constitution provides that Electoral College votes are to be counted and certified in the Presence of the Senate and House of Representatives, and thus the power at issue is an institutional one held by the two houses of Congress, not by any individual congressperson.

But the core statutory claim that all three defendants make is simply that the conspiracy that 1985 prohibits has not been adequately pleaded. The first requirement of any civil plaintiff is to provide a short and plain statement of the claim showing that the pleader is entitled to relief. Importantly, it is not enough simply to assert facts that would give rise to a cause of action; the plaintiffs allegation must be facially plausible in that it pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. And the more particular the facts the plaintiff alleges, the more likely it is that the complaint will satisfy a motion to dismiss.

As one of us has previously explained, the question of whether Trump and Giuliani in particular conspired to incite a riot against the Capitol is a difficult one:

[C]onspiracy defendants must have a shared objective and [t]he defendant held liable as part of the conspiracy must have intended to bring about the tortious wrong that was the subject of the agreement. Here, the tort is to to prevent, by force, intimidation, or threat one of the 1985 predicates. Based on the planning alleged in the complaint, this should be relatively straightforward to establish in the case of the Oath Keepers and the Proud Boys, two of the named defendants. Establishing this as to Giuliani (or Trump, assuming his immunity claim fails) will be more difficult, as their degree of coordination with the Oath Keepers and Proud Boys remains unknown.

The test for whether a complaint alleges sufficient facts to plausibly establish a claim is notoriously vagueor, as the Supreme Court has euphemistically explained, is context-specific, requiring the reviewing court to draw on its experience and common sense. The evidence is likely sufficient to satisfy pleading standards for the Oath Keepers, given the voluminous physical and digital evidence of that groups involvement in coordinating many of the events of Jan. 6. But a judge could legitimately conclude either way as to the claims against Trump and Giuliani. Of course, if Trumps immunity and Trumps and Giulianis First Amendment claims are accepted, that will render the statutory issues moot.

***

Thompsons lawsuit is far from dead in the water, but, at least with respect to Trump and Giuliani, it faces formidable constitutional and perhaps statutory challenges. And if Thompson is unsuccessful, his legal failure will underscore an important point: Across a number of constitutional, statutory, and procedural doctrines, the U.S. legal system is not well placed to deal with presidential attacks on American democracy. If accountability for Trump and his enablers is to be had, the nations political elites, and the voters who support them, will have to play the leading role.

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Presidential Immunity, the First Amendment and the Capitol Riot - Lawfare