The former president has argued for presidential immunity in cases where his actions are linked to the 2021 U.S. Capitol uprising.
The U.S. Justice Department has briefly said that former President Donald Trump could be sued by injured Capitol police officers and Democratic lawmakers over the January 6, 2021 riot at the Capitol.
The announcement comes as a federal lawsuit testing Trump’s legal fragility and the limits of the executive branch.
The department wrote that while a president has wide legal leeway to communicate with the public about matters of concern, “no part of a president’s official responsibilities includes inciting imminent private violence. Such conduct, by definition, falls clearly outside the constitutional and statutory duties of the president.”
The short was filed by attorneys in the Justice Department’s civil division and does not affect a separate criminal investigation by a Department of Justice special counsel into whether Trump could face criminal charges for attempting to challenge Democrat Joe Biden’s victory at the 2020 presidential election.
In fact, the lawyers note that they take no position regarding possible criminal liability for Trump or anyone else.
The Justice Department also wrote that it would not take a position on a lower court’s conclusion that those who sued Trump “plausibly” claimed that his speech caused the riot. Nevertheless, the department said an appeals court must reject Trump’s claim that he is immune from the lawsuits.
The Justice Department warned that the “court must be careful not to pass rules that would unnecessarily curb legitimate presidential communications” or burden a president with meritorious lawsuits.
“In exercising their traditional communicative functions, presidents routinely address controversial issues that are the subject of passionate feelings. Presidents sometimes use strong rhetoric. And some who hear that rhetoric may overreact, or even react with violence,” the department wrote.
Trump is appealing a decision by a federal judge in Washington last year that rejected the former president’s attempts to quash civil suits brought by lawmakers and two U.S. Capitol police officers. U.S. District Judge Amit Mehta ruled that Trump’s words at a rally before the violent storming of the U.S. Capitol were likely “incendiary words not protected by the First Amendment.”
The lawsuits — brought by Democratic Rep. Eric Swalwell and officers James Blassingame and Sidney Hemby, and later joined by other House Democrats — allege Trump and others made “false and inflammatory allegations of fraud and theft.”
The lawsuits also allege that “in direct response to the defendant’s explicit calls for violence at the rally, a violent mob assaulted the U.S. Capitol.”
They cite a federal civil rights law enacted to counter the harassment of officials by the Ku Klux Klan. The lawsuits detail how Trump and others spread baseless allegations of voter fraud both before and after the 2020 presidential election was called, accusing the former president and his allies of inciting the thousands of rioters before they stormed the Capitol.