Jesse Binnall told the US Court of Appeals for the District of Columbia Circuit that his client Trump is immune from the lawsuits because he was acting as president when he delivered his impassioned remarks to supporters, using the “bully pulpit” to comment on outside events.
Democrats in Congress and police officers filed several lawsuits over the Capitol attack on January 6, 2021, alleging that Trump conspired with others to disrupt the certification of the 2020 election results.
Trump told his crowd of supporters that he would never concede the 2020 race and urged them to “fight like hell” before they marched to the Capitol, where lawmakers were preparing to certify Democrat Joe Biden’s victory.
A 1982 US Supreme Court ruling held that presidents cannot be sued over their official acts. But US District Judge Amit Mehta in Washington, DC, ruled in February that Trump’s fiery speech ahead of the riots did not fall within the then-president’s scope of duties, allowing the lawsuits to move forward.
The three-judge panel pressed attorneys on both sides about the scope of presidential immunity and what options are available to hold people accountable for disrupting Congress.
Under questioning from Judge Gregory Katsas, Binnall said Trump could “theoretically” face criminal liability over the riots. But he reiterated that civil lawsuits should be barred because they could make other presidents vulnerable to future litigation over their speech.
Joseph Sellers, arguing in defence of the lawsuits, said Trump does not have immunity because his actions disrupted the work of another branch of government.
Asked if Trump’s entreaties to supporters on January 6 amounted to protected free speech, Sellers said the president’s remarks should be considered as part of a series of actions aimed at preventing Congress from certifying the 2020 election.
The arguments come as Trump faces federal criminal probes tied to January 6 and his retention of White House records, as well as a congressional investigation over the Capitol violence. Last month, Trump announced he is running for president again in 2024.
Several members of Congress who are suing Trump attended Wednesday’s arguments, including Democrats Eric Swalwell and Pramila Jayapal.