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Justice Department: Trump Doesn’t Have Immunity in Capitol Riots Claims

— March 2, 2023

The Department of Justice informed a federal appeals court that, because inciting violence is not part of a president’s official duties, Trump should not be considered immune to civil claims relating to the January 6 riots.

The United States Department of Justice has said that former President Donald Trump should not be held immune from three civil lawsuits accusing him of inciting and encouraging the Capitol riots on January 6, 2021.

According to USA Today, attorneys for the agency said that the circumstances of the riots—and Trump’s alleged involvement in them—fall outside the commander-in-chief’s presidential duties, and therefore exempt him from immunity.

The New York Times reports that Supreme Court precedent has held that the Constitution affords presidents immunity from civil lawsuits—so long as such lawsuits relate to actions taken in an official capacity.

However, the lawsuits concerning the Capitol unrest broadly contend that Trump’s comments on the results of the 2020 presidential election fell far outside his official duties.

“No part of a President’s official responsibilities includes the incitement of imminent private violence,” the Justice Department said in an appeals court filing. “By definition, such conduct plainly falls outside the President’s constitutional and statutory duties.”

People milling around in front of the Capitol building, some carrying signs.
January 6, 2021 storming of the United States Capitol. Photo by Tyler Merbler, courtesy of Wikimedia Commons. CC BY 2.0

While the Department of Justice acknowledged that Trump was entitled to share his opinion on matters of public concern, federal lawyers alleged that Trump’s conduct went beyond what would ordinarily be expected from sitting U.S. presidents.

“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,” attorneys said. “But that traditional function is one of public communication. It does not include incitement of imminent private violence of the sort the district court found that plaintiffs’ complaints have plausibly alleged here.”

The New York Times notes that, if the appeals court sides with the Justice Department in allowing the January 6-related lawsuits to proceed, the litigation could “add to the mountain of legal costs” Trump already faces.

Additionally, the Times opines that the Department of Justice’s filing is somewhat remarkable, insofar as the agency typically takes a “broad view of executive power and defending the prerogatives of the presidency.”

Nevertheless, the agency argued that, if Trump is found to have incited violence, he should not be shielded from civil action.

Yet, in spite of its seemingly aggressive stance, the Department of Justice explicitly stated that it did not endorse the claim that Trump was directly responsible for instigating the attack on the United States Capitol.

“The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s Jan. 6 speech incited the subsequent attack on the Capitol,” the Department of Justice wrote. “But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this court should reject the categorical argument President Trump pressed below and renews on appeal.”

Former President Donald Trump is facing lawsuits filed by Democratic lawmakers, as well as Capitol Police officers injured or traumatized by the riots.


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