Donald Trump’s immunity shield was so all-powerful that he would have been protected from lawsuits even if he’d called on his followers to “burn Congress down” while in office, his attorney stunningly argued in a federal appeals court.
Lawyer Jesse Binnall insisted Trump would be immune from any lawsuits in a string of extreme scenarios presented to him Wednesday at a hearing before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.
The court is determining whether two police officers and 11 congressional Democrats can sue Trump for what they describe as a conspiracy to block Congress’ certification of the 2020 election results on Jan. 6 last year.
The complaints have focused on Trump’s tweets exhorting supporters to come to Washington, his lies that the election was stolen, and his remarks to supporters in a speech on the day of the insurrection to “fight like hell” and march to the Capitol.
A 1982 U.S. Supreme Court ruling held that presidents cannot be sued over their official acts. But U.S. District Judge Amit Mehta ruled in February that Trump’s incendiary speech before the Capitol riots was not part of the then-president’s duties, allowing the lawsuits to move forward. Binnall was challenging that ruling on Wednesday.
Asked by Chief Judge Sri Srinivasan if a president would be immune from lawsuits even if he urged his supporters to intimidate citizens at polling stations to prevent them from voting, Binnall said yes, while also admitting that such behavior would be “horrible,” Bloomberg reported.
Binnall also defended presidential civil immunity when Judge Greg Katsas asked about a president hypothetically calling to “burn Congress down.” Binnall noted, however, that a president could “theoretically” be subject to post-presidency criminal charges in such a case (though not lawsuits), Reuters reported.
Katsas noted that the case against Trump involved “at least colorable” — possibly justified — allegations that he incited the mob that stormed the Capitol last year.
Yet Binnall insisted that a president would not be subject to civil litigation even if it was determined that the president was “seeking to destroy our constitutional system.”
He claimed Trump’s inflammatory rhetoric railing against the election he lost was simply part of his right to express his perspective from the “bully pulpit” of the presidency.
Plaintiffs’ attorney Joseph Sellers argued that Trump is “not entitled to the immunity he seeks because his conduct interrupted the peaceful transfer of power,” ABC News reported.
The lawsuits at the heart of the appeal allege violations of the Ku Klux Klan Act, which safeguards federal officials and employees against conspiratorial acts directed at preventing them from performing their duties.