Jesse Binnall forcefully argued that Trump can't face legal consequences for actions he didn't take.
The president can't be sued for failing to do something.
The exchange was potentially the most significant in the hearing on the lawsuits filed against Trump. Two of the suits were filed by Democratic members of Congress, and one was brought by two Capitol Police officers who were injured during the fighting. The cases have been on file for more than nine months, but the hearing Monday was the first substantive one on the issues involved.
One of the civil suits was filed by a congressman. Thompson withdrew from the matter after Pelosi named him chair of the select committee. Republicans have used his role in filing the civil case to challenge his impartiality in his new role leading the House panel.
During the two hours after the Capitol was breeched, Trump remained largely quiet, issuing a flurry of short-lived statements that seemingly made the crowd even more angry, while ignoring calls for him to publicly intervene. Trump's legal team was forced to contend with it publicly for the first time after Mehta drew out discussion on that subject.
If my words had been misconstrued, wouldn't someone just say, wait a second, stop? Mehta wondered. He referred to the evidence unearthed by the select committee, noting that Donald Trump Jr. had urged the White House to get his father to issue a public denunciation of the violence. Trump didn't call for the rioters to go home after police lost control of the Capitol.
Mehta is focused on whether to allow the lawsuits against Trump to move forward, or if the complaints against the former president are plausible and legally sound.
In the course of the arguments, Trump's lawyers claimed that virtually every statement Trump made was immune from civil lawsuits.
The immunity of the presidency is important.
Mehta repeatedly pressed Binnall to come up with an example of what a president could say in office that could lead to civil liability. Binnall couldn't think of an example. The duties of the president are not limited to one area.
impeachment was the only recourse for Democrats against Trump.
Mehta is familiar with the ongoing criminal prosecutions that took place after the Capitol storming. The prosecution of 19 members of the Oath Keepers militia network is the largest criminal case he has overseen.
Mehta has made it clear that he believes the role of powerful actors, including Trump, is an important driver of the attack on the Capitol. Mehta said he viewed the low-level Jan. 6 defendants as pawns in a game of lies.
Mehta said that people like Mr. Lolos were told that the election was stolen. The people who created the conditions that led to Mr. Lolos' conduct should be held to account.
Binnall appeared to be laying the groundwork to defend the former president against a potential criminal case over a phone call he had with Georgia Secretary of State Brad Raffensperger. Fulton County prosecutors are looking at the call and considering criminal charges.
"Yes, sir, he does, he has legally immunity for his Georgia call," Binnall said.
The president has a constitutional responsibility to see that the laws are faithfully executed. It is part of the president's duty to speak frankly on matters of public concern.
The scope of presidential immunity from civil suits is one of the issues before the court. All involved in the hearing seemed aware of the drumbeat for a criminal prosecution of the former president.
Mehta, an appointee of President Barack Obama, was skeptical of Binnall's arguments for absolute immunity. The judge seemed more open to the argument that his statements on Jan. 6 were political and related to his official duties.
Where would a court draw the line? Mehta asked Joseph Sellers if he was representing Democratic lawmakers.
Sellers said that extreme calls by a president for illegal action against the government had to be outside the scope of the special protection that courts have accorded to the chief executive.
The court would be powerless to assess whether the president was immune from prosecution if he promoted treason in a public forum. That is not possible, said Sellers.
Trump's attorney said that the president's immunity should be limited to acts or statements that involve his official powers as president.
The kind of election-related conduct that has long been considered outside of a president's official duties is what Trump said on Jan. 6.
The president's campaign activity has never been seen as normal. I guess I am asking the court to consider that, wherever the close-call standard is, this falls well outside of it.
The statements Trump made on the Ellipse would not be covered by the immunizing statements made by other presidential candidates.
The incumbent would be immune if he were to be re-elected, but his opponent would not. "I said that." I don't see how that could be.
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