Case 1:21-cv-00586-APM
Document 56 Filed 02/18/22 Page 40 of 112:
Hear Ye, Hear Ye comes know
the United States Dystopian Court in the matter of Donald John Trump, a “Grant
of Immunity” for involvement in the January 6th “Domestic Terrorist Attack”
on the U.S. Capitol.
42 U.S.C. Section §1986 Claim - The
foregoing comes with one important caveat: President Trump is
immune as to Swalwell’s failure-to-act claim under §1986. That provision
states: “Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned [in section 1985 of this title], are about
to be committed, and having power to prevent or aid in preventing the
commission of the same, neglects or refuses so to do, if such wrongful act be
committed, shall be liable to the party injured, or his legal representatives,
for all damages caused by such wrongful act, which such person by reasonable
diligence could have prevented.” - 42 U.S.C. §1986. The statutory
provision is unique. It requires persons with knowledge of a conspiracy
proscribed in §1985 and with the means to prevent the conspiracy to take
affirmative actions to do so. A person who refuses or neglects to exercise such
power is liable for damages to those persons whose injuries could have been
prevented. Swalwell alone asserts a claim under §1986 against President Trump.
He alleges that President Trump knew about the alleged §1985 conspiracy, had
the power to prevent it, and failed to exercise “reasonable diligence” to avoid
harm. Specifically, he asserts that “when it was clear that rioters had stormed
the Capitol, and Congress was unable to certify the results of the Electoral
College vote, [President Trump] had the power to stop the rioters but refused
and, instead, encouraged them.” That allegation, it would seem, makes out a §1986
claim against the President. But the President cannot be held liable for his
failure to exercise his presidential powers, at least under §1986. Just as
he is immune for acts that fall within the outer perimeter of his official
responsibilities, so too must he be immune for alleged failures to exercise
that official responsibility. Were it otherwise, Presidents routinely would be
subject to suit for not doing more or for not acting at all. Absolute immunity
would be gutted if a plaintiff could avoid it simply by alleging a failure to
exercise presidential power. The court therefore dismisses Swalwell’s §1986
claim.
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