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Trump claims immunity from hypothetical ‘burning down Congress’

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(Bloomberg) – Donald Trump’s lawyer has argued that presidential immunity would shield him from prosecution, even though he urged his supporters to “burn Congress” while in office.

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Trump has claimed full immunity from lawsuits by police and Democratic members of Congress accusing the former president of instigating the January 6, 2021 attack on the US Capitol in his final days in office. A federal judge in Washington previously denied Trump’s request, but his attorney, Jesse Binnall, presented a new argument in the DC Circuit Court of Appeals on Wednesday.

The three-judge appeals panel probed the outer limits of Trump’s claimed immunity, posing a series of dramatic hypothetical scenarios to Binnall. The lawyer denounced some of the conduct held by the judges, but firmly maintained that a president would be immune for taking such actions.

Presidents generally enjoy immunity from prosecution for official acts, which includes election-related activities. On Wednesday, Chief Circuit Judge Sri Srinivasan asked Binnall whether 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 voting. exercise their right to vote.

Binnall said it would be “awful” but yes, immunity would apply. He said a sitting president’s limit of liability should be based on “purely personal” conduct and interests, such as allegations of sexual assault or a conversation between a president and his agent. changes about financial assets. But he suggested that a president urging his supporters to question the vote count was simply using the office’s well-established “bullying pulpit”.

Circuit Judge Greg Katsas said he grapples with the fact that the case against Trump involves “at least colorable” allegations that he incited the mob that attacked the Capitol. Katsas then hypothesized a president urging his supporters to “burn down Congress.”

Binnall said civil immunity would also apply in this case, but he said impeachment and possible criminal charges after the presidency would provide other avenues of liability.

Building on the assumptions of her colleagues, 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 “sought to destroy our constitutional system. Binnall responded that, based on such facts, such acts should not be subject to civil action.

The lawsuits at issue accuse Trump of being part of a conspiracy to interfere with Congress’ certification of the 2020 election results. The complaints centered on his tweets urging his supporters to come to Washington, citing baseless claims that the election had been stolen, and then his speech at the Ellipse the day of the riot in which he told the crowd to “fight on” and march to the Capitol.

In interviewing Joseph Sellers, the trial attorney for the plaintiffs, Srinivasan noted that presidents routinely encourage people to voice their opposition to legislation before Congress. Sellers responded that Trump’s interference in the peaceful transfer of power was an “extreme” situation.

Katsas asked if a president would be immune from prosecution if he urged his supporters to protest peacefully and, “unpredictably”, some “bad apples” engaged in violence.

Sellers said immunity would likely apply, but Trump’s situation was different because there was a “continuing course of action” for which he was responsible.

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