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Trump lawyers claim he is immune to prosecution for Jan. 6 riot

Attorneys for the former disgraced president and his cohorts say they are protected by free speech under "absolute immunity." A federal judge was not convinced.
Then-President Donald Trump arrives to speak at a rally in Washington on Jan. 6, 2021. (AP Photo/Jacquelyn Martin)

Attorneys for former President Donald Trump and his associates argued Monday that incendiary statements by Trump and others last Jan. 6 prior to the Capitol riot were protected speech and in line with their official duties.

In response to civil suits running parallel to Congress’ own Jan. 6 inquiry, Trump’s lawyers claimed he was acting within his official rights and had no intention to spark 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 has never been an example of someone successfully being able to sue a president for something that happened during his term of office,” said Trump lawyer Jesse Binnall. “That absolute immunity of the presidency is very important.”

The five-hour hearing in Washington before U.S. District Judge Amit Mehta concerned Trump’s attempts to have the civil suits dismissed. 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’s calls to derail the Senate vote certification process were in line with any executive’s right to comment or criticize a co-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, referencing cases where former President Barack Obama publicly commented on Supreme Court decisions.

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 refenced 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 statute 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.”

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