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Trump lawyers argue ‘absolute immunity’ in defence of former president’s remarks before January 6 riot

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A mob of supporters of former US president Donald Trump storm the Capitol building in Washington on January 6, 2021. Photo: Reuters/Leah Millis

A mob of supporters of former US president Donald Trump storm the Capitol building in Washington on January 6, 2021. Photo: Reuters/Leah Millis

Former US president Donald Trump's lawyers claimed he was acting within his official rights and had no intention to spark violence. Photo: Evan Vucci/AP

Former US president Donald Trump's lawyers claimed he was acting within his official rights and had no intention to spark violence. Photo: Evan Vucci/AP

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A mob of supporters of former US president Donald Trump storm the Capitol building in Washington on January 6, 2021. Photo: Reuters/Leah Millis

Lawyers for Donald Trump and his associates have argued that incendiary statements made by the former US president and others on January 6 last year before the Capitol riot were protected speech and in line with their official duties.

In response to civil suits running parallel to Congress’s own January 6 inquiry, Mr Trump’s lawyers claimed he was acting within his official rights and had no intention to spark violence when he called on thousands of supporters to “march to the Capitol” and “fight like hell” to disrupt the Senate’s certification of the 2020 election result.

“There has never been an example of someone successfully being able to sue a president for something that happened during his term of office,” said his lawyer Jesse Binnall. “That absolute immunity of the presidency is very important.”

The five-hour hearing in Washington before US District Judge Amit Mehta concerned Mr Trump’s attempts to have the civil suits dismissed. 

Democratic representative Eric Swalwell brought one of the suits against Mr Trump and a host of others, including Donald Trump Jr, Trump lawyer Rudy Giuliani, Alabama Republican representative Mo Brooks and right-wing group the Oath Keepers, charging responsibility for the violent breach of the Capitol building by Trump supporters.

The other lawsuits, brought by Democratic representatives and two Capitol Police officers, claim statements made by Mr Trump and Mr Brooks on and before January 6 essentially qualify as part of a political campaign, and are therefore fair game for litigation.

Plaintiffs are seeking damages for the physical and emotional injuries they sustained during the insurrection. 

“What he spoke about was a campaign issue, seeking to secure an election,” said Joseph Sellers, one of the lawyers representing Mr Swalwell. “This was a purely private act.”

Mr Sellers said Mr Trump’s statements were an overt and unambiguous call for political violence.

Mr Binnall argued that Mr Trump’s calls to derail the Senate vote certification process were in line with any executive’s right to comment or criticise a co-equal government branch.

Judge Mehta also focused on the hours-long silence from Mr Trump as his supporters rampaged through the building. He questioned Mr Binnall at length about whether that failure or refusal to condemn the assault as it was happening could be interpreted as approval.

The lawyer responded: “You cannot have a situation where the president is obligated to take certain actions or say certain things or else be subject to litigation.”

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