"Why would I just go out and tell somebody 1,500 miles away, 'Hey, let's get a Black man?'"
That was one of Tom Metzger's arguments, along with claims that the First Amendment protected his right to publish racist literature, in a 1990 Portland jury trial that resulted in a $12.5 million judgment holding Metzger responsible for the death of 28-year-old Mulugeta Seraw, an Ethiopian immigrant.
I was one of the lawyers who brought the lawsuit (Berhanu v Metzger; Multnomah County, 1989) and tried the case with the Southern Poverty Law Center. And it feels like déjà vu all over again listening to the lawyers defending ex-President Trump.
Let me back up. In mid-November 1988, PSU student Mulugeta Seraw was brutally beaten to death with a baseball bat by racist skinheads on the quiet neighborhood street of Southeast 31st Avenue. The murderer was promptly arrested, eventually pleaded guilty and sent to prison.
Two years later, Morris Dees, co-founder of the Southern Poverty Law Center, and I began a civil jury trial accusing Tom Metzger, his son John Metzger, and their organization the White Aryan Resistance of responsibility for Seraw's murder. We presented proof that Metzger, who lived in Southern California, had sent a young man to Portland to recruit skinheads for his white supremacist organization, and that violence was a primary recruiting tool.
Even though we presented no evidence that Metzger directly exhorted the murderer to assault Black men, the jury found that the Metzgers and their organization encouraged and condoned the violence that led to Seraw's murder.
Although the facts are much different, Trump's impeachment lawyers seem to be putting forth a defense similar to Metzger's. They argue that Trump never directly said, "storm the Capitol," and that he wasn't with the mob when the Capitol was breached. T
hey contend Trump had a First Amendment right to tell the insurrectionists to march on the Capitol, and to say to his followers, "You'll never take back our country with weakness." It is not an impeachable offense, they conclude, to tell the rioters in the minutes before they head to the Capitol, "If you don't fight like hell you're not going to have a country anymore."
The impeachment trial may well end in an acquittal (44 senators having already voted that an ex-president cannot be impeached), but the president's defense lawyers' arguments ring hollow. If Trump knew that violence was being planned — news reports say that the FBI was monitoring the planning and informed the White House — then his encouragement to "fight like hell," was at the very least reckless, and at worst designed to spur on the insurrectionists.
Even if White House staffers did not pass on the FBI's concerns, Trump is not in the clear. For months he complained constantly, and falsely, that the election was stolen. He arranged the Jan. 6 Save America rally on the day the Electoral College vote was to be tallied. At the rally he applauded his personal attorney Rudy Giuliani's telling the crowd "we will have a trial by combat." Trump exhorted the large crowd to go to the Capitol and "fight like hell."
When insurrectionists forcibly entered the Capitol, Trump was watching on television and chose to say nothing for more than two hours. Although the D.C. mayor asked the Pentagon for Capitol reinforcements at 1:34 p.m., although the insurrectionists breached the Capitol at 2:11 p.m., although members of Congress were hiding in barricaded rooms by 2:20 p.m., although an FBI SWAT team entered the Capitol at 2:52 p.m., Trump did not ask the rioters to leave until 4:17 p.m.
As a lawyer who tried cases for 45 years, I confidently conclude that Tom Metzger was found responsible for the murder of Mulugeta Seraw on less evidence than what has been presented against Trump.
Elden Rosenthal is a retired Portland trial attorney. In addition to the Seraw case, Rosenthal was an attorney for Brandon Mayfield, who was falsely accused by the FBI of terrorism and received a $2 million settlement because of the agency's accusations. You can read his description of the Seraw trial in the Winter 2019 Oregon Historical Quarterly.
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