By Devan Cole, CNN
A federal court of appeals in DC spent nearly two hours on Wednesday grappling with whether former President Donald Trump should be immune from liability in three separate lawsuits stemming from the January 6, 2021, insurrection.
A federal judge in Washington, DC, ruled in February that the lawsuits can move forward, denying Trump’s claim that his conduct was shielded by the privileges of the presidency. But his attorney, Jesse Binnall, urged a three-judge panel of the DC Circuit Court of Appeals to overturn that decision, arguing his client was using the so-called bully pulpit when he spoke to his supporters the morning of the attack, and that the speech deployed under that cover shields Trump from the lawsuits.
“It is very normal for a president to comment on any number of things,” Binnall told the court, adding that it’s “especially important that we protect the president’s right to” execute the duties of his office.
Binnall argued that civil liability was not the correct remedy for individuals taking issue with things a president says. Instead, he stressed that the correct remedy would be the impeachment process as set forth in the Constitution. He said that Trump being denied immunity in the cases will have a chilling effect on future presidential speech as it would open presidents up to a slew of lawsuits from opponents. (Before leaving office, Trump was impeached by House Democrats for inciting the riot but was later acquitted by the Senate.)
The three lawsuits were filed last year by Democratic members of the House and by police officers who defended the US Capitol on January 6, with the suits claiming Trump prompted his supporters to attack.
Oral arguments in the case went well over the allotted time, with both sides fielding questions about a number of hypothetical situations posed by the three judges handling the appeal. Though Chief Judge Sri Srinivasan, a Barack Obama nominee, and Judge Judith Rogers, a Bill Clinton nominee, gave little indication as to how they would rule in the case, Judge Gregory Katsas, a Trump appointee, was more open about how he was struggling with the case.
Katsas conceded at one point that he found the case “tough” and “difficult,” saying that the underlying facts — that Trump incited a violent riot on the US Capitol — make it a complicated one. But he said Trump’s speech the day of the riot “doesn’t look like it would satisfy the standard” put forth by an attorney for the lawmakers and police officers who filed the initial suits.
That attorney, Joseph Sellers, told the court on Wednesday that a president should not be immune from civil liability if their speech in question “overtly, explicitly or implicitly” sought to interfere with the functions of a co-equal branch of government.
Several lawmakers who brought the suits were present at Wednesday’s arguments, including Democratic Reps. Barbara Lee of California, Pramila Jayapal of Washington and Veronica Escobar of Texas.
“I think it is probably one of the most important cases in American history,” Escobar told reporters following the arguments. “This case is about whether a person or a group of people can essentially overthrow our democracy and our government.”
In his ruling earlier this year, DC District Court Judge Amit Mehta wrote that Trump’s statements to his supporters before the riot “is the essence of civil conspiracy” because Trump spoke about himself and rallygoers working “towards a common goal” of fighting and walking down Pennsylvania Ave.
“To deny a President immunity from civil damages is no small step. The court well understands the gravity of its decision. But the alleged facts of this case are without precedent,” Mehta wrote.
Trump’s attorneys are asking the appeals court to reverse Mehta’s ruling and send the case back to him with instructions to dismiss the former president as a defendant.
“The underlying question here is simple: is a president immune from civil liability when he or she gives a speech on a matter of public concern? The answer is undoubtedly, yes,” Trump’s attorneys said in court papers filed earlier this year. They argued Trump’s remarks at the center of the case — the speech he gave to supporters at the Ellipse prior to the attack — is protected by his “ironclad presidential immunity as it relates to speechmaking.”
Earlier this year, Mehta dismissed several close allies to Trump from the suits, including his former attorney Rudy Giuliani and his son Donald Trump Jr.
Two of the lawsuits were brought by Democratic House members, while a third was filed by Capitol Police officers. The three lawsuits have been consolidated into one for the purposes of the appeal.
The lawmakers allege that they were threatened by Trump and others as part of a conspiracy to stop the congressional session that would certify the 2020 presidential election on January 6, 2021, according to the complaints. They argue that Trump should bear responsibility for directing the assaults. The police officers said in their suit that they were hit by chemical sprays and objects the crowd threw at them, like water bottles and signs, because Trump inspired the crowd.
Attorneys for the lawmakers and officers argued in court papers that presidential immunity has clear limits and that “because Trump’s actions, as set forth in the complaints, subverted our constitutional design — and cannot be reconciled with any plausible understanding of the presidency and its powers — Trump lacks any valid claim to immunity here.”
“Immunizing Trump’s conduct would weaken the presidency by diminishing the American public’s ability to choose who occupies that office. Thus, immunizing Trump’s conduct would warp the very constitutional structure that immunity exists to preserve,” they told the court in a brief filed in October.
Last week, a federal judge in DC said that Trump doesn’t have “absolute immunity,” as the former president claimed he should, in response to a separate lawsuit in its early stages related to Trump’s actions around the 2020 presidential election.
This story has been updated with additional details.
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CNN’s Katelyn Polantz and Marshall Cohen contributed to this report.