() — The Justice Department on Thursday urged an appeals court to reject blanket claims of presidential immunity made by former President Donald Trump in the civil litigation surrounding the January 6, 2021 insurrection at the United States Capitol.
The department told the appeals court — which is considering several private lawsuits filed against Trump for his conduct in the lead up to the Capitol attack — that a president cannot be absolutely immune from speaking out on a matter of public interest if it is discovered. that the speech incited violence.
“No part of the official responsibilities of a president includes inciting imminent private violence,” the Justice Department said in a friend of the court brief. that the U.S. Court of Appeals for the Washington Circuit asked the government to submit.
Thursday’s report marks the first time the department has dealt directly with the question of Trump’s civil immunity for his conduct related to January 6. The lawsuits were brought by Democratic House members and Capitol Police officers.
A 1982 US Supreme Court ruling established that presidents are absolutely immune from civil damages arising from their official acts as president, but when presidential speech amounts to an official act remains a murky question for courts.
The new filing emphasized just how difficult legal disputes surrounding presidential immunity are, with the Justice Department telling the Washington Circuit that in “all contexts, presidential immunity issues must be addressed with the utmost sensitivity to incessant lawsuits.” of the Presidency”.
The Justice Department warned the court not to use the January 6 civil cases as a vehicle to draw firm lines on whether the president may face liability for speech related to electoral or political concerns. Instead, the department asked the Washington Circuit to issue a “narrow” ruling, focusing solely on Trump’s lawyers’ contention that he should be immune from civil lawsuits over presidential speech, even if that speech incited violence.
The January 6 civil cases are currently in a phase where the courts are weighing questions about the legal strength of the claims against Trump, and those courts are not yet considering the factual merits of the allegations against the former president. A district court judge previously denied a motion by Trump to dismiss the case, concluding that the former president was not entirely immune from the January 6 civil suit.
The Washington Circuit is now considering a request by Trump to reverse that ruling. After hearing arguments on the matter last year, the appeals court invited the Justice Department to weigh in.
“The United States here does not express an opinion on the district court’s finding that the plaintiffs have plausibly alleged that President Trump’s January 6 speech incited the subsequent attack on the Capitol,” the Justice Department said in its brief. . “But because actual incitement would not be protected by absolute immunity even if it occurred in the context of speech on matters of public interest, this Court should reject the outright argument that President Trump subsequently pushed and is renewed on appeal. ”.
Whether Trump can face certain civil lawsuits for his conduct while in the White House has been difficult terrain to navigate for the Justice Department.
The Justice Department, led by Attorney General Merrick Garland, came under fire from the left when it clung to the Trump-era position that Trump could not be personally sued for allegedly defaming a woman who accused him of sexual assault. The courts are still considering the issue, but if he sides with the Justice Department, that would force the dismissal of the case, brought by E. Jean Carroll.
In the January 6 civil cases, the department seeks to take a very precise stance on why Trump might be held liable in civil lawsuits for his January 6-related conduct.
He is asking the Washington Circuit not to issue any ruling that attempts to “comprehensively define the limits of the President’s immunity for his speech on matters of public concern, including when and how to draw the line between the President’s official and electoral speech.” ”.
The Justice Department stressed that it was not considering any potential criminal liability.
In the brief, the department said in a footnote that it “does not express any opinion regarding the potential criminal liability of any person for the events of January 6, 2021 or acts related to those events.”
A special prosecutor is leading a federal criminal investigation into efforts by Trump and his allies to overturn the 2020 election.