(WASHINGTON) — An attorney for former President Donald Trump told a federal appeals court on Wednesday that Trump’s fiery speech on the Ellipse prior to the Jan. 6 attack on the U.S. Capitol was within his official responsibilities and, as a result, he is immune from lawsuits filed by 11 Democratic members of Congress and two Capitol police officers seeking to hold him responsible for the attack.
Washington, D.C., district judge Amit Mehta in February rejected Trump’s bid to have the suits dismissed, prompting Trump’s attorneys to appeal the decision to the D.C. Circuit Court of Appeals.
The three lawsuits allege violations of the Ku Klux Klan Act that safeguards federal officials and employees against conspiratorial acts directed at preventing them from performing their duties.
The three-judge appeals panel seemed skeptical that Trump’s rhetoric at the rally fell within his official responsibilities, asking his attorney, Jesse Binnall, what power Trump was acting under when he told rally-goers, “We fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.”
“I don’t know what work the speech-making is doing,” Judge Sri Srinivasan said. “What I’m worried about is whether it actually falls within official presidential responsibility when what’s going on is campaigning for office.”
Judge Greg Katsas asked, more pointedly, “When the president gets involved in electoral counting, what enumerated power of Article II is he acting on?”
Plaintiffs’ attorney Joseph Sellers argued that “President Trump is not entitled to the immunity he seeks because his conduct interrupted the peaceful transfer of power.”
But Binnall cautioned that allowing the lawsuits to go forward would “open the floodgates” to civil litigation against U.S. presidents.
“I think it is difficult on any speech the president gives to decide that it’s outside the bully pulpit of the presidency,” Binnall said.
Binnell had argued that a 1982 Supreme Court decision shields presidents from civil lawsuits over their official acts, but Mehta’s decision earlier this year allowed the Jan. 6 suits to go forward.
“Absolute immunity does not shield President Trump from suit,” Mehta said in his ruling. “To deny a President immunity from civil damages is no small step. The court well understands the gravity of its decision. But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity.”
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