WASHINGTON — Donald Trump’s lawyer argued that presidential immunity would protect him from lawsuits even if he had urged his supporters to “burn Congress down” while in office.
Trump has asserted sweeping immunity against suits by both police officers and Democratic members of Congress accusing the former president of inciting the Jan. 6, 2021, attack on the US Capitol in his final days in office. A federal judge in Washington previously rejected Trump’s claim, but his lawyer, Jesse Binnall, on Wednesday made a renewed argument before the D.C. Circuit US Court of Appeals.
The three-judge appellate panel probed the outer limits of the immunity that Trump was claiming, posing a series of dramatic hypothetical scenarios to Binnall. The lawyer denounced some of the conduct the judges posited but held firm in maintaining that a president would be immune for undertaking such actions.
Presidents do typically enjoy immunity from lawsuits over official acts, which includes election-related activity. Chief Circuit Judge Sri Srinivasan on Wednesday asked Binnall if that should apply to a president who urged supporters in a private meeting to go to the polls and intimidate voters to prevent them from exercising their right to vote.
Binnall said that would be “horrible” but that, yes, immunity would apply. He said the line for liability for a sitting president should be drawn at “purely personal” conduct and interests, such as sexual assault allegations or a conversation between a president and their stockbroker about financial holdings. But he suggested a president urging his supporters to question the electoral vote count was merely using the office’s well-established “bully pulpit.”
Circuit Judge Greg Katsas said he was struggling with the fact that the case against Trump involved “at least colorable” allegations that he incited the mob that attacked the Capitol. Katsas then posed the hypothetical of a president urging supporters to “burn down Congress.”
Binnall said civil immunity would apply in that instance too, but he said impeachment and possible post-presidency criminal charges would offer other avenues for accountability.
Building off her colleagues’ hypotheticals, Judge Judith Rogers asked if Trump’s position was that there was no role for the courts even if there was a finding that a president was “seeking to destroy our constitutional system.” Binnall replied that, based on such facts, such acts shouldn’t be subject to civil litigation.
The suits at issue accuse Trump of being part of a conspiracy to interfere with Congress’ certification of the 2020 election results. The complaints focused on his tweets exhorting supporters to come to Washington, citing baseless claims that the election was stolen, and then his speech at the Ellipse the day of the riot in which he told the crowd to “fight” and march to the Capitol.
In questioning Joseph Sellers, the lawyer arguing for the plaintiffs, Srinivasan noted that presidents routinely encouraged people to express opposition to legislation before Congress. Sellers responded that Trump’s interference with the peaceful transfer of power was an “extreme” situation.
Katsas asked if a president would be immune from suits if they urged supporters to peacefully protest and, “unforeseeably,” some “bad apples” engaged in violence.
Sellers said immunity would probably apply, but that Trump’s situation was different because there was a “continuous course of conduct” for which he was responsible.
