Attorney for former President Donald Trump cited “absolute immunity” for presidents, wanting the civil cases against him about the Capitol riot on Jan. 6 tossed.
“There has never been an example of someone successfully being able to sue a president for something that happened during his term of office,” said Jesse Binnall, an attorney for Trump. “That absolute immunity of the presidency is very important.”
Trump’s lawyers claimed their client was acting within his official rights and had no intention to create violence when he called on thousands of supporters to “march to the Capitol” and “fight like hell” to disrupt the Senate‘s certification of the 2020 election results.
There was a five-hour hearing in the District of Columbia before U.S. District Judge Amit Mehta on Monday regarding Trump’s attempts to dismiss the civil suits.
Binnall said that Trump’s calls to disrupt the Senate vote certification process were within any executive’s right to criticize or comment on an equal government branch.
“A president always has the authority to speak on whether or not any of the other branches, frankly, can or should take action,” he said, citing cases where former President Barack Obama publicly commented on Supreme Court decisions.
Democratic Rep. Eric Swalwell of California brought one of the suits against Trump and a host of others, including Donald Trump Jr., Trump lawyer Rudy Giuliani, Alabama Republican Rep. Mo Brooks and right-wing group the Oath Keepers, charging responsibility for the violent breach of the Capitol building by Trump supporters.
The other lawsuits, brought by Democratic representatives and two Capitol Police officers, claim that statements by Trump and Brooks on and before Jan. 6 essentially qualify as part of a political campaign, and are therefore fair game for litigation. Plaintiffs are seeking damages for the physical and emotional injuries they sustained during the insurrection.
“What he spoke about was a campaign issue, seeking to secure an election,” said Joseph Sellers, one of the attorney’s representing Swalwell’s suit. “This was a purely private act.”
Sellers said Trump’s statements were an overt and unambiguous call for political violence.
“It’s hard to conceive of a scenario other than the president traveling down to the Capitol himself and busting through the doors … but of course he did that through 3rd-party agents, through the crowd,” he said.
Binnall argued that Trump has already been subject to a trial over Jan. 6 — his second impeachment trial, where he was acquitted by the then-Republican-majority Senate.
“That was their remedy and they failed,” he said. “They don’t get another bite of the apple here.”
Mehta repeatedly cut off lawyers on both sides with questions and challenges.
Giuliani lawyer Joseph Sibley at one point stated, “There’s simply no way you can construe the statements that were made by any of the speakers to be an invitation to join a conspiracy to go to the Capitol and commit crimes.”
Mehta immediately asked, “Why not?”
The judge then referenced Trump’s own Jan. 6 speech in detail.
“His last words were ‘go to the Capitol’ and before that it was ‘show strength’ and ‘fight.’ Why isn’t that a plausible invitation to do exactly what the rioters ended up doing?” Mehta asked. “Those words are hard to walk back.”
Mehta at one point focused on the hours-long silence from Trump as his supporters battled Capitol Police and D.C. police officers and rampaged through the building. He questioned Binnall at length about whether that failure or refusal to condemn the assault as it was happening could be interpreted as approval.
Binnall responded, “You can not have a situation where the president is obligated to take certain actions or say certain things or else be subject to litigation.”
Brooks has invoked the Westfall Act, a statue that protects federal employees from being sued over actions taken while performing their official duties. However, Justice Department lawyer Brian Boynton told the court that Brooks should be denied such protection.
The fact that Brooks was “advocating for the election of President Trump with these remarks at a Trump rally does make this a campaign activity,” Boynton said.
Brooks, who represented himself in Monday’s proceedings, told the court that a House of Representatives ethics committee declined to pursue charges against him. He added that there was no ongoing campaign to participate in on Jan. 6.
“The campaign for election ended on November 3,” Brooks said. “Everything after that was a legal proceeding.”
The Associated Press contributed to this report.