A D.C. Circuit panel seemed disinclined Wednesday to say former President Donald Trump has absolute immunity for his Jan. 6, 2021, rally speech given the "colorable case of incitement" at issue, but wrestled with how to structure a limit on presidential immunity.
During a nearly two-hour oral argument, U.S. Circuit Judge Gregory Katsas said several times that the hard thing about the case for him is there being at least a "colorable case of incitement" in the then-president's Jan. 6 speech before his supporters attacked the Capitol. In a consolidated appeal of three cases brought by Democratic lawmakers and two U.S. Capitol police officers seeking to hold Trump liable for psychological or physical harm they suffered from the Capitol attack, Trump is arguing a D.C. district judge wrongly denied him presidential immunity.
Judge Katsas challenged Trump's attorney to explain any functional or historical support for immunizing the president against actual incitement of rioting or lawless acts, and said he does not think there would be broad impacts on the office of the presidency if immunity is denied here.
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U.S. Circuit Judge Sri Srinivasan asked Joseph Sellers of Cohen Milstein Sellers & Toll PLLC, who argued for the plaintiffs, to give the court direction on what standard to use when determining whether presidents lose their immunity. Sellers said the test should be whether a complaint plausibly alleges the president took action that "disrupted or blocked the discharge of duties by a co-equal branch of government" — as he says happened here when Trump supporters interrupted the Congressional count of electoral college ballots.
Judge Katsas suggested such a test may clash with First Amendment speech protections, saying it would "seem odd to me to say a president would lose immunity for inciting activity where a private party would have a substantive defense under Brandenburg."
"To me, that's where the rubber meets the road," the judge added.
He said he has printed out Trump's speech from the rally and read it a number of times. The worst parts of the speech — lines like Trump telling his supporters to "fight like hell"— don't compare to more explicit statements other courts have determined are incitement, he said.
Sellers said the speech cannot be viewed in a vacuum but must be considered in context with the months Trump spent sowing disbelief about the 2020 election results and riling up his supporters to believe the election had been stolen — what Judge Katsas said can be summed up as the "powder keg."
Sellers argued that, even if no single set of words spoken by Trump is tantamount to the Brandenburg cases, the whole of the circumstances makes clear the president ignited the situation.
The plaintiffs are represented by Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC, Janette McCarthy-Wallace, Anthony P. Ashton and Anna Kathryn Barnes of the NAACP, Robert B. McDuff of Mississippi Center for Justice, Patrick A. Malone, Daniel Scialpi and Heather J. Kelly of Patrick Malone & Associates PC, Phillip Andonian and Joseph Caleb of Caleb Andonian PLLC, Matthew Kaiser and Sarah R. Fink of Kaiser Dillon PLLC, and Cameron Kistler, Erica Newland, Kristy L. Parker, Jacek Pruski, Anne Tindall, John Paredes, Genevieve C. Nadeau, Benjamin L. Berwick and Helen E. White of United To Protect Democracy.
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