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Lawyer for ‘Oath Keepers’ Asks Judge to Toss Democratic Lawmakers’ Capitol Breach Lawsuit: ‘The Constitution Does Not Protect One from Violence’

Kelly Meggs and several other alleged Oath Keepers gathered at the Capitol on Jan. 6.

Kelly Meggs and several other alleged Oath Keepers gathered at the Capitol on Jan. 6.

A lawyer representing the far-right Oath Keepers militia group asked a federal judge to throw out a lawsuit filed by House Democrats accusing the organization as well as Donald Trump, Rudy Giuliani, and the Proud Boys of conspiring to incite the deadly Jan. 6 attack on the U.S. Capitol in order to prevent Congress from certifying the Electoral College votes.

The complaint was filed in February by U.S. House Committee on Homeland Security Chair Rep. Bennie Thompson (D-Miss.) and later joined by ten of his House colleagues. The lone cause of action alleged a violation of the Civil Rights Act of 1871, also known as the Ku Klux Klan Act, which makes it a crime to “conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof.”

In a 32-page motion to dismiss filed in the U.S. District Court in Washington, D.C. on Wednesday, attorney Kerry Lee Morgan argued that allegations that the group “conspired to incite an assembled crowd to march upon and enter the Capitol” were “speculative and conclusory.” Morgan previously mounted several unsuccessful campaigns for a seat on Michigan’s State Supreme Court.

On two occasions, the lawyer referred to the group as the “Oak Keepers.” Presumably that’s a typographical error.

Morgan alleged a lack of specificity in the underlying lawsuit by attacking vague references to alleged Oath Keeper “leaders” and their purported “statements.” No additional information was divulged, and Morgan said that was a problem.

“Paragraph 54 [of the Complaint] declares that an unknown Oath Keepers leader made statements to President Donald Trump and that President Trump tweeted his support in response,” Morgan wrote. “All details about what was said are not provided. There are no details about who said it or in what capacity the speaker spoke. There is no indication of who the speaker was or how he or she was a ‘leader’ of Oath Keepers and not just some person. It alleges no violation of any act or law or constitutional right of the plaintiffs”

Morgan also noted that the complaint made a similar “generalization” a few paragraphs later in reference to an Oath Keeper leader saying the group had “orchestrated a plan with the Proud Boys” just days prior to Jan. 6.

“This could be said of every elementary school trip—they all come with a plan,” he wrote. “What that plan is, is unstated. Who the leader is, is unstated. What the leader is actually proposing is left to speculation and the imagination.”

Additionally, the motion asserted that the 11 House members, each of whom filed the complaint in their personal capacity, lacked standing to allege they were prevented from performing their duties under the U.S. Constitution. Such a claim, according to Morgan, would require the case to be filed on behalf of the House of Representatives.

“The 12th amendment only speaks in terms of observation by the House as an institution. It speaks of no duty of the House or any of its members as plead in the complaint,” Morgan wrote. “The duty of the President of the Senate is to open the certifications and count them in the presence of the House of Representatives—that distinct body identified in Article 1, section 1. Nothing in the Amendment describes a duty pertaining to any individual House member. It merely specifies that the House as a district institution must be present. There is no allegation that the House of Representative was not present.”

The motion concluded by contending that allowing the case to continue would an affront to the First Amendment. “[T]he utterances attributed to unknown persons purportedly acting by or on behalf of defendant Oath Keepers constitutes protected speech alone,” Morgan wrote.

“The Constitution does not protect one from violence, but the allegations and holding of this Court in Caldwell amply demonstrate no Oath Keeper entered the Capitol violently or otherwise and therefor nothing in the amended complaint reaches to any violent act to physically prevent the House from observing the Electoral proceedings,” Morgan continued. “Absent violence, the First Amendment erects a strong barrier against use of [the KKK Act] to trample down First Amendment rights.”

Prosecutors have charged 14 alleged Oath Keepers with crimes related to the siege on the U.S. Capitol.

Kerry Morgan did not immediately respond to an email from Law&Crime regarding the motion

Read the full filing below.

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.