Trump claims absolute immunity in attempt to toss January 6 suits from Democrats, Capitol Police officers
WASHINGTON, DC - JANUARY 06: WASHINGTON, DC - JANUARY 06: Crowds gather for the "Stop the Steal" rally on January 06, 2021 in Washington, DC. Trump supporters gathered in the nation's capital today to protest the ratification of President-elect Joe Biden's Electoral College victory over President Trump in the 2020 election. / GETTY IMAGES
S P E C I A L
BY MELISSA QUINN, ROBERT LEGARE
Washington — Lawyers for former President Donald Trump argued Monday that he is entitled to broad immunity from civil lawsuits attempting to hold him accountable for his role in the January 6 riot at the U.S. Capitol, as they sought to convince a federal judge to toss out a trio of lawsuits filed against him in the wake of last year's violent assault.
U.S. District Judge Amit Mehta heard oral arguments spanning roughly five hours to consider whether to grant the request from the former president to dismiss the civil cases or allow them to move forward.
Democratic Congressman Eric Swalwell of California, two members of the Capitol Police and a group of House Democrats, led by Congressman Bennie Thompson of Mississippi, have each accused the former president of inciting the insurrection at the Capitol on January 6.
The suit filed by Swalwell also named Rudy Giuliani, Trump's personal lawyer, Donald Trump Jr., and GOP Congressman Mo Brooks of Alabama. The suit from the 11 House Democrats alleges Trump, Giuliani and two far-right extremist groups, the Proud Boys and Oath Keepers, conspired to incite a crowd of his supporters to breach the Capitol to stop Congress from counting states' electoral votes and reaffirming President Biden's win in the 2020 presidential election.
Trump, however, argues he has "absolute immunity" from liability in the three civil suits filed against him and claims his remarks outside the White House before the mob descended on the Capitol were political speech protected by the First Amendment. During that speech, Trump urged attendees of the "Save America" rally at the Ellipse to "fight like hell" and march to the Capitol building "to peacefully and patriotically make your voices heard."
"We're not on the outer perimeters here. We are dead center on immunity, because a president always has the authority to speak about whether or not any of the other branches frankly can or should take action," Jesse Binnall, Trump's attorney, told Mehta on Monday, adding that the president in his remarks was discussing congressional action — the tallying of Electoral College votes — which is "dead center" on the official duties of the president.
"Look at the type of act that was being conducted," Binnall argued, "Speak[ing] to the American people ... giving a speech is something that presidents do," noting the words themselves are not at issue here, but the forum in which they were delivered.
Mehta pressed Binnall on how far the boundaries of presidential immunity extend and where to draw the line, asking whether there was "anything a president could say or do in his capacity as a candidate that would not receive immunity?"
Binnall said he could not think of an example and instead argued the appropriate remedy for Trump's actions surrounding January 6 was impeachment, which was pursued by the House and ended with his acquittal by the Senate.
"They don't get another bite at the apple with these questions," he said, adding that executive immunity "must be broad."
But Joseph Sellers, who argued on behalf of the Democratic lawmakers and Capitol Police officers, told Mehta that Trump was engaged in "purely private actions" on January 6 and therefore cannot be shielded from the civil lawsuits.
"There is no legitimate role absolutely for fomenting an insurrection directed at Congress," Sellers said of the part presidential immunity plays in legal protection.
Mehta, though, noted that during his remarks outside the White House, Trump was addressing the integrity of the election, a "matter of public concern." It is within a president's capacity, he said, to speak to the public about such matters.
"Why isn't that something that is squarely something for which he enjoys immunity?" Mehta asked, later pointing to a Nixon-era Supreme Court ruling that prohibits courts from examining a president's motives.
Sellers explained that those suing the president were not focused on his motives, but rather the words he spoke on January 6.
The former president's attorneys flatly argued their client did nothing illegal.
"The only people who committed overt, illegal acts are the actual individuals who went to the Capitol," they said.
Still, the judge later highlighted that some of Trump's last words were "'go to the Capitol'" and questioned why that language would not be tied to the Capitol attack that followed.
"We're not talking here about any ordinary protest," Mehta said.
Trump's lawyers reiterated that he was "very, very clear" that he wanted everyone to act "peacefully and patriotically."
But Mehta raised the former president's silence while the mob of his supporters breached the Capitol, which led to the evacuation of lawmakers and a pause in proceedings, and questioned whether that was enough to "plausibly infer that the president agreed with the conduct" of the rioters.
"What do I do about the fact that the president didn't denounce the conduct immediately?" he asked.
In arguing Trump's remarks were protected under the First Amendment, Binnall said the president's words do not "rise to any level of violence."
"Here you have political dialogue using very calm words in political dialogue and then you have the reaction … afterwards by third parties," he said. "That is not something that ever becomes actionable based on the words at play here, which are not calls to violence."
Sellers, though, argued Trump's comments can not be isolated only to the rally on January 6, as he "beat the drum of fraud, fraud, fraud" in the weeks leading up to the insurrection.
"You have to look at the broader context," he said.
In his lawsuit against Trump, Swalwell accuses the former president, Giuliani, Trump Jr. and Brooks of violating federal civil rights laws and D.C. law by spreading false allegations of voter fraud and other conduct that led to the violence at the Capitol on January 6.
Brooks, like Trump, is also seeking immunity from Swalwell's suit, arguing he was acting within the scope of his employment as a House member when he spoke outside the White House before the Capitol attack. The Justice Department has already declined a request from Brooks to represent him in the case, saying his appearance at the rally on January 6 was "campaign activity" and inciting an insurrection is outside the scope of his employment.
The group of House Democrats, meanwhile, claims Trump and Giuliani violated the Ku Klux Klan Act, a Reconstruction-era law that prohibits two or more people from conspiring to "prevent, by force, intimidate or threat" any office-holder from performing their official duties. The lawmakers argue Trump and Giuliani, together with the Proud Boys and Oath Keepers, instigated the mob as part of a "carefully coordinated campaign" to interfere with the process to confirm the tally of Electoral College votes cast.
Jon Mosely, who represents the Oath Keepers in the lawsuit, told CBS News in a statement that reads in part "Judge Mehta is very scholarly and academic. I don't believe one can tell how he is going to rule from the hearing because he asks both sides tough questions."
In the third suit filed by Capitol Police officers James Blassingame and Sidney Hemby, Trump is accused of spurring the January 6 assault with his repeated baseless claims of election fraud. The two officers say they suffered physical and emotional injuries from the riot and are seeking compensatory damages of $75,000 each, as well as punitive damages of an unspecified amount.
Trump's conduct in the run-up to and on January 6 led the House to impeach him for incitement of insurrection in the wake of the assault, making him the only president to be impeached twice. The Senate, however, acquitted Trump of the impeachment charge.
A House select committee is conducting its own investigation into the events surrounding the Capitol assault and has sought records from Trump's White House, sparking a legal battle brought by the former president. Trump asked the Supreme Court last month to intervene to block the National Archives from releasing the documents to House investigators, but the justices have not yet acted on his request.
Monday's hearing also comes less than a week after other law enforcement officers who responded to the January 6 attack filed additional lawsuits against Trump. Two Metropolitan Police Department officers and two Capitol Police officers allege in their suits that "Trump's words and conduct leading up to and on January 6, 2021 … demonstrated a willful and wanton disregard for and a reckless indifference to" the safety of the officers.