Trump Claims ‘Absolute Immunity’ From Jan. 6 Civil Suits

Former President Donald Trump arrives to speak at the America First Policy Institute Agenda Summit in Washington on July 26, 2022. Mandel Ngan/AFP via Getty Images

Former President Donald Trump asserted “absolute immunity” to shield him from civil lawsuits over his role in the Jan. 6 Capitol breach.

In a July 27 filing (pdf), Trump’s attorneys Jesse Binnall and Molly McCann urged a federal appeals court in Washington to entirely dismiss the former commander-in-chief as a defendant in civil suits linked to the Capitol incident in early 2021, citing presidential immunity.

“This appeal requires the adjudication of a simple but important constitutional issue regarding the separation of powers: whether the scope of the presidential absolute immunity continues to reach the outer perimeters of presidential responsibilities or whether the immunity can be undercut if the presidential act in question is unpopular among the judiciary,” said the preliminary statement to the court.

“This question has already been answered by the Supreme Court,” it continued, “which held that the immunity is rooted in constitutional separation of powers, and it is especially important to the President because he deals with matters that are controversial and arouse intense feelings.”

The 48-page document sought to reserve a previous decision by U.S. District Judge Amit Mehta, an Obama appointee who denied Trump’s claim of absolute immunity in February, deeming the former president’s post-election effort on Jan. 6, 2021 a personal attempt to remain in power, rather than official acts. It means such civil lawsuits can still hold Trump accountable for the Jan. 6 attack.

Such analysis “would open the flood gates,” the legal team warned in the new filing. “The exception would swallow the rule. Future courts would be free to look to the political context of the presidential act rather than being constrained to look no further than the nature of the act itself,” they wrote.

Executive Immunity

Binnall had previously contended that statements by then-President Trump were protected speech and he was acting within the scope of his official presidential duties. “Executive immunity must be broad,” he said during a five-hour court hearing in Washington before U.S. District Judge Amit Mehta.

The latest brief from Wednesday asserted that Trump “is shielded by absolute presidential immunity because his statements were on matters of public concern and therefore well within the scope of the robust absolute immunity afforded all presidents.”

Attorneys called on the appellate court to reject the so-called “attempt to undermine absolute immunity.” “No amount of hyperbole about the violence of January 6, 2021, provides a basis for this Court to carve out an exception to the constitutional separation of powers,” it concludes.

Mehta admitted in his February ruling that the denial of 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, and the court believes that its decision is consistent with the purposes behind such immunity,” he said.

Trump appealed a month later against the district court’s ruling, yet the panel of presiding judges has not been decided yet.

The former president is now facing multiple civil cases linked to the Jan. 6 Capitol incident, including those filed by Democrats, the National Association for the Advancement of Colored People, and Capitol and Metro police officers.

The Wednesday court filing also called these lawsuits an “attempt to thwart” an early acquittal of Trump, which amounted to “harassment that presidential immunity is meant to foreclose.”