Former President Donald Trump can be sued by injured Capitol Police officers and Democratic lawmakers over the Jan. 6, 2021, insurrection at the U.S. Capitol, the Justice Department said Thursday in a federal court case testing Trump’s legal vulnerability for his speech before the riot.
The Justice Department told a Washington federal appeals court in a legal filing that it should allow the lawsuits to move forward, rejecting Trump’s argument that he is immune from the claims.
The department said it takes no position on the lawsuits’ claims that the former president’s words incited the attack on the Capitol. Nevertheless, Justice lawyers told the court that a president would not be protected by “absolute immunity” if his words were found to have been an “incitement of imminent private violence.”
“As the Nation’s leader and head of state, the President has ‘an extraordinary power to speak to his fellow citizens and on their behalf,’ they wrote. “But that traditional function is one of public communication and persuasion, not incitement of imminent private violence.”
The brief was filed by lawyers of the Justice Department’s Civil Division and has no bearing on a separate criminal investigation by a department special counsel into whether Trump can be criminally charged over efforts to undo President Joe Biden’s victory in the 2020 presidential election ahead of the Capitol riot. In fact, the lawyers note that they are not taking a position with respect to potential criminal liability for Trump or anyone else.
Trump’s lawyers have argued he was acting within the bounds of his official duties and had no intention to spark violence when he called on thousands of supporters to “march to the Capitol” and “fight like hell” before the riot erupted.
“The actions of rioters do not strip President Trump of immunity,” his lawyers wrote in court papers. “In the run-up to January 6th and on the day itself, President Trump was acting well within the scope of ordinary presidential action when he engaged in open discussion and debate about the integrity of the 2020 election.”
A Trump spokesperson said Thursday that the president “repeatedly called for peace, patriotism, and respect for our men and women of law enforcement” on Jan. 6, and that the courts “should rule in favor of President Trump in short order and dismiss these frivolous lawsuits.”
The case is among many legal woes facing Trump as he mounts another bid for the White House in 2024.
A prosecutor in Georgia has been investigating whether Trump and his allies broke the law as they tried to overturn his election defeat in that state. Trump is also under federal criminal investigation over top secret documents found at his Florida estate.
In the separate investigation into Trump and his allies’ efforts to keep the Republican president in power, special counsel Jack Smith has subpoenaed former Vice President Mike Pence, who has said he will fight the subpoena.
Trump is appealing a decision by a federal judge in Washington, who last year rejected efforts by the former president to toss out the conspiracy civil lawsuits filed by the lawmakers and police officers. U.S. District Judge Amit Mehta ruled that Trump’s words during a rally before the violent storming of the U.S. Capitol were likely “words of incitement not protected by the First Amendment.”
“Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a President’s speech,” Mehta wrote in his February 2022 ruling. “But the court believes this is that case.”
One of the lawsuits, filed by Rep. Eric Swalwell, D-California, alleges that “Trump directly incited the violence at the Capitol that followed and then watched approvingly as the building was overrun.” Two other lawsuits were also filed, one by other House Democrats and another by officers James Blassingame and Sidney Hemby.
The House Democrats’ lawsuit cites a federal civil rights law that was enacted to counter the Ku Klux Klan’s intimidation of officials. The cases describe in detail how Trump and others spread claims of election fraud both before and after the 2020 presidential election was declared, and charge that they helped to rile up the thousands of rioters before they stormed the Capitol.
The lawsuits seek damages for the physical and emotional injuries the plaintiffs sustained during the insurrection.
Even if the appeals court agrees that Trump can be sued, those who brought the lawsuit still face an uphill battle. They would need to show there was more than fiery rhetoric, but a direct and intentional call for imminent violence, said Laurie Levenson, a Loyola Law School professor and former federal prosecutor.
“We are really far away from knowing that even if the court allows the lawsuit to go forward whether they would be successful,” she said. “Even if the court says hypothetically you can bring an action against a president, I think they’re likely to draw a line that is very generous to the president’s protected conduct.”
In its filing, the Justice Department cautioned that the “court must take care not to adopt rules that would unduly chill legitimate presidential communication” or saddle a president with burdensome and intrusive lawsuits.
“In exercising their traditional communicative functions, Presidents routinely address controversial issues that are the subject of passionate feelings,” the department wrote. “Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence.”