Former President Donald Trump can be held liable by police officers for the violent mob that attacked the U.S. Capitol on Jan. 6, 2021, the Justice Department said on Thursday.
In a court filing with the U.S. Court of Appeals for the District of Columbia, Justice Department lawyers said Mr. Trump is not protected by absolute immunity, which is typically granted to presidents carrying out their official duties.
The briefing was filed as the appellate court weighs three civil lawsuits accusing Mr. Trump of inciting the Jan. 6 attack.
The lawsuits were filed by two U.S. Capitol Police officers and several congressional Democrats. They say Mr. Trump should be held liable for the physical and psychological injuries they sustained during the riot.
Mr. Trump’s legal team has argued that he is immune from lawsuits, saying his speech to a rally near the White House on Jan. 6 was part of his duties as commander in chief to comment on a matter of public concern.
The Justice Department sees it differently, arguing that the speech fell outside Mr. Trump’s constitutional responsibilities.
“Speaking to the public on matters of public concern is a traditional function of the presidency, and the outer perimeter of the president’s office includes a vast realm of such speech,” the Department’s lawyers wrote. “But that traditional function is one of public communication. It does not include incitement of imminent private violence.”
However, the Justice Department sidesteps the issue of whether Mr. Trump is actually responsible for the riot. Instead, the lawyers argue that the appeals court should reject Mr. Trump’s immunity claim and remand the lawsuits to lower courts to determine if he was responsible for the riot.
“Such a narrow decision would leave for further proceedings in the district court (and, if necessary, a future appeal) any renewed assertion of absolute immunity more narrowly focused on whether the former president’s speech actually constituted incitement,” the department lawyers wrote.
The lawsuits were filed under a statute written in the 1800s in response to the Ku Klux Klan that allows for damages when force, threat or intimidation is used to prevent government officials from carrying out their duties. The pro-Trump rioters stormed the Capitol in a bid to stop the certification of President Biden’s 2020 election victory.
During his speech before the attack, Mr. Trump urged his supporters to “fight like hell” to stop Congress from certifying Mr. Biden’s victory. But he later told the crowd to “peacefully and patriotically make your voices heard.”
“Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence,” the department lawyers wrote, saying speech that could incite or produce lawlessness is not protected by the First Amendment.
Although the Biden Justice Department has denied Mr. Trump’s claim of absolute immunity, it has sided with the former president’s similar claims in another lawsuit. The department has argued that Mr. Trump is protected by absolute immunity in a defamation case brought by a woman who accused the former president of raping her in the mid-1990s. The former president said in remarks to reporters, “she’s not my type.”
The lawsuits are still in the preliminary stage, but they are not the only civil claims filed against Mr. Trump related to the Jan. 6 riot. Other Capitol Police officers have sued Mr. Trump along with the partner of Brian D. Sicknick, who died of natural causes one day after fighting off rioters.
Special counsel Jack Smith, who was appointed by Attorney General Merrick Garland, is also probing whether Mr. Trump should face criminal charges stemming from the Jan. 6 attack or his efforts to overturn the results of the 2020 presidential election.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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