- Justice Department urges appeals court to set standards for lawsuits against a president.
- Department lawyers argued that presidents should not be allowed to incite violence.
WASHINGTON – The Justice Department said Thursday former President Donald Trump doesn’t deserve absolute immunity from three civil lawsuits accusing him of inciting the Capitol attack on Jan. 6, 2021.
“No part of a President’s official responsibilities includes the incitement of imminent private violence,” department lawyers said in an appeals court filing. “By definition, such conduct plainly falls outside the President’s constitutional and statutory duties.”
A three-judge panel of the D.C. Circuit Court of Appeals will decide whether to allow the lawsuits to continue. The panel heard oral arguments about whether to dismiss the cases in December, but asked the Justice Department to weigh in.
Chief Judge Sri Srinivasan and Judges George Katsas and Judith Rogers are hearing the case. Srinivasan was appointed to the appeals court by Barack Obama, Katsas by Trump and Rogers by Bill Clinton.
Here is what we know about the cases:
What are the lawsuits about?
The three lawsuits each accuse Trump of inciting the riot and seek to hold him responsible for it. Nearly 1,000 people have been charged in the attack and a mob rampaged through the Capitol and temporarily prevented Congress from counting Electoral College votes. One rioter was shot to death outside the House chamber by a police officer. A police officer who was sprayed by chemicals during the attack died the next day from a stroke.
- Ten House Democrats filed a lawsuit accusing Trump of violating the 1871 Ku Klux Klan Act, which sought to protect lawmakers from threats or intimidation against carrying out their duties. The lawsuit filed in February 2021 initially named Trump’s personal lawyer, Rudy Giuliani; the Oath Keepers and Proud Boys, far-right groups with dozens of members charged criminally in the attack.
- Rep. Bennie Thompson, D-Miss., initially was lead plaintiff in the lawsuit but dropped out when he became head of the House committee that investigated the attack. The remaining litigants are current or former Reps. Bonnie Coleman Watson, D-N.J.; Karen Bass, D-Calif.; Pramila Jayapal, D-Wash.; Maxine Waters, D-Calif.; Jerrold Nadler, D-N.Y.; Henry Johnson, D-Ga.; Stephen Cohen, D-Tenn.; Barbara Lee, D-Calif.; Veronica Escobar, D-Texas; and Marcy Kaptur, D-Ohio.
- Rep. Eric Swalwell, D-Calif., filed a lawsuit in March 2021 accusing Trump of knowing about the conspiracy to attack the Capitol and doing nothing to stop it. His lawsuit also targeted Giuliani; the former president’s son, Donald Trump Jr.; and Rep. Mo Brooks, R-Ala., who each spoke at a Trump rally near the White House before the attack.
- U.S. District Judge Amit Mehta dropped Trump Jr., Giuliani and Brooks from the cases by ruling their speeches at the rally and other actions didn’t make them part of an alleged conspiracy.
- Two Capitol police officers, James Blassingame and Sidney Hemby, filed a lawsuit alleging Trump’s conduct incited the riot by urging his followers to try to overturn the election results.
What is Trump arguing?
Trump’s lawyers urged the appeals court to dismiss the lawsuits by arguing that contentious speeches such as the one he gave Jan. 6, 2021, are part of a president’s job.
“The underlying question here is simple: is a president immune from civil liability when he or she gives a speech on a matter of public concern?” Trump’s lawyers said. “The answer is undoubtedly, yes.”
Trump’s lawyers have argued he is immune from lawsuits for anything he said at the rally. They also argued he couldn’t be part of any conspiracy to incite the violence because he urged participants to “peacefully and patriotically make your voices heard” at the Capitol.
But in allowing the cases to continue, Mehta, who is also overseeing criminal cases from the Capitol attack, noted Trump urged his supporters to “fight like hell” before his supporters fought police and forced their way into the building.
“At the end of his remarks, he told rally-goers, ‘we fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore,’” Mehta said. “Many overcame resistance by violently assaulting United States Capitol Police (‘Capitol Police’) with their fists and with weapons.”
What did the Justice Department say?
Justice Department lawyers took no position on the three lawsuits. And they said presidents are typically protected from civil lawsuits because of their broad official duties and the difficulties distinguishing them from personal duties.
But the department lawyers said no president should be able to incite violence, despite Trump’s claim of absolute immunity from all lawsuits.
Government lawyers urged the appeals court judges to set narrow rules for the lawsuits to continue, to avoid saddling a president with lawsuits that would be burdensome and intrusive even if meritless.
“It is not a rule of absolute immunity for the president, regardless of the nature of his acts,” the lawyers said.
“The district court also correctly rejected President Trump’s categorical assertion ‘that whenever and wherever a President speaks on a matter of public concern he is immune from civil suit,’” the department lawyers said.