January 10, 2022

A D.C. federal judge pushed back Monday on former President Donald Trump's claim that he has "absolute immunity" from three suits seeking to hold him and others liable for inciting last year's deadly U.S. Capitol attack and called into question Trump's long delay in calling off his supporters who carried out the riot.

U.S. District Judge Amit P. Mehta expressed strong reservations over Trump's presidential immunity claim, including that his demand to supporters during a "Save America" rally to march to the Capitol and "fight like hell" also enjoys immunity. The rally was on the day of the riot and took place near the White House moments before Congress certified Joe Biden's 2020 presidential victory.

Judge Mehta voiced skepticism while hearing five hours of oral arguments in Trump's motions to dismiss three cases by Democratic lawmakers and two U.S. Capitol police officers against him and others.

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In Monday's hearing, Judge Mehta pressed attorneys for the plaintiffs to explain the scope of presidential immunity. Cohen Milstein Sellers & Toll PLLC partner Joseph Sellers, who argued for the lawmakers, said that under Binnall's theory, the president could promote treason in a public forum and the courts would be "powerless" to do anything.

"That's inconceivable as something that the Supreme Court had in mind," Sellers said. 

Judge Mehta repeatedly cited the judicial review limit under the Fitzgerald holding and asked, "Where would you have the court draw the line?"

Sellers replied that whatever the scope is, Trump's "incendiary" remarks and actions fall "well outside it."

The lawsuits alleged that the riot, which left five people dead, including a Capitol Police officer, was a direct result of Trump's actions.

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At the end of the hearing, Judge Mehta said he will rule on the dismissal motions "quickly."

The lawmakers are represented by Philip Andonian and Joseph Caleb of CalebAndonian PLLC, Matthew Kaiser and Sarah Fink of KaiserDillon PLLC, Barry Coburn and Marc Eisenstein of Coburn & Greenbaum PLLC, Janette McCarthy-Wallace, Anthony P. Ashton and Anna Kathryn Barnes of the NAACP Office of General Counsel, Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC, and Robert B. McDuff of the Mississippi Center for Justice.

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