January 10, 2022

A federal judge challenged Donald Trump’s claim of “absolute immunity” from allegations that he incited the violent Jan. 6 Capitol riot as his attorneys asked Monday to toss out three lawsuits by Democratic House members and police officers seeking damages for physical and emotional injuries they incurred in the assault.

Arguing alongside lawyers for co-defendants Rudolph W. Giuliani and Rep. Mo Brooks (R-Ala.), Trump defense attorney Jesse R. Binnall asserted that any incendiary remarks before the assault by the then-president fell “dead-center” within his constitutional duty to ensure the nation’s election laws were faithfully executed and a president’s use of the bully pulpit to speak to the American people “freely and frankly on matters of public concern.”

U.S. District Judge Amit P. Mehta pushed back against attorneys on both sides during a nearly five-hour hearing in Washington. The hearing represented the latest round in the continuing national debate over Trump’s accountability for his role in the Jan. 6, 2021, Capitol attack that authorities said to led to five deaths and assaults on nearly 140 police and delayed Congress’s confirmation of Joe Biden’s electoral college victory.

“Is there anything a president could say while president of the United States that could subject him to civil suit?” Mehta asked Binnall. “Is there anything a president could say or do campaigning as a candidate that would not receive immunity?”

Mehta gave little hint how he would rule on whether a federal jury in Washington may hear claims that the former president and others instigated and facilitated that day’s attack in violation of the Reconstruction-era Ku Klux Klan Act, which bars violent interference in Congress’s constitutional duties. But he said he would rule “quickly” on that claim, as well as whether a jury should consider whether Trump and his co-defendants are legally liable for injuries sustained by lawmakers and police during the deadly, hours-long breach of the Capitol by Trump supporters angered by his unfounded claims of election fraud.

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Plaintiffs [argued] Trump was acting not in his official capacity as president but as a failed political candidate and private citizen when he openly supported and encouraged those who used violence against election officials and his political opponents.

They asserted that Trump’s baseless and incendiary statements claiming the election was being “stolen” by fraud and his embrace of violence were part of a months-long conspiracy with others to subvert the results of the election, culminating with Brooks and Giuliani egging on the riot along with other speakers — including Donald Trump Jr. — at a fiery rally that morning at the White House Ellipse.

At the rally, the suits allege, President Trump whipped the crowd into a mob, encouraging attendees to “fight like hell” and march to the Capitol as he repeated false claims about the illegitimacy of the election.

The suits allege that Giuliani, acting as Trump’s attorney, urged lawmakers to delay the count in hopes of somehow preventing certification altogether and to pressure Trump’s running mate, Vice President Mike Pence, to overturn the result.

“The First Amendment does not protect the military-style incursion into the Capitol led by the Oath Keepers; nor does it shield Trump and Giuliani’s incendiary remarks, which aroused and mobilized the assembled crowd with the purpose, and having the effect, of violently disrupting official proceedings of Congress,” wrote House lawmakers’ legal team, led by Joseph M. Sellers.

Joined by attorneys for the NAACP and in alignment with lead Swalwell attorney Phil Andonian, Sellers also argued Trump ignored warnings that violence was a foreseeable result and did nothing to calm the frenzied mob for more than an hour after rioting began, in a conspiracy to obstruct, by force or threat, the certification of the 2020 election results.

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