Former president Donald Trump can be sued by injured Capitol Police officers and Democratic lawmakers over the January 6, 2021, insurrection at the US Capitol, the Justice Department said Thursday in a federal court case testing Trump’s legal vulnerability and the limits of executive power.
In court papers, the Justice Department urged a federal appeals court in Washington to allow the lawsuits to move forward, writing that “no part of a President’s official responsibilities includes the incitement of imminent private violence.”
The Justice Department said it took no position on the lawsuits’ claims that the former president’s words incited the attack on the Capitol. Nevertheless, Justice Department lawyers said the court should reject Trump’s argument that “absolutely immunity” shields him from being sued because the remarks were in line with his official duties.
“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.
An email seeking comment was sent to an attorney for Trump on Thursday. Trump’s lawyers have argued 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” before the riot erupted.
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. US District Judge Amit Mehta ruled that Trump’s words during a rally before the violent storming of the US 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.”
The lawsuits, filed by Representative Eric Swalwell, D-Calif., officers James Blassingame and Sidney Hemby, and later joined by other House Democrats, argue that Trump and others made “false and incendiary allegations of fraud and theft, and in direct response to the Defendant’s express calls for violence at the rally, a violent mob attacked the US Capitol.”
The suits cite a federal civil rights law that was enacted to counter the Ku Klux Klan’s intimidation of officials. They describe in detail how Trump and others spread baseless 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.
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 meritless 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.”
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