The Department of Justice has briefed the D.C. Circuit Court of Appeals to reject former President Donald Trump’s claims of absolute presidential immunity in civil litigation related to the January 6th riot. The DOJ specifically told the appeals court, which is fielding civil lawsuits that name Trump as a defendant for his role in the January 6th riot, “that a president can’t be absolutely immune for speech on a matter of public concern if the speech is found to have incited violence.”
According to the DOJ’s brief, which addresses lawsuits that members of the House and Capitol Police have brought against Trump, “no part of a president’s official responsibilities includes the incitement of imminent private violence.”
The brief represents the first time the DOJ has indicated its stance on whether Donald Trump has civil immunity for his January 6th behavior.
Does Donald Trump have immunity?
Whether Trump has immunity ultimately won’t be up the Department of Justice; the D.C. Circuit Court of Appeals will determine whether Trump has immunity.
And if the decision elicits an appeal, which the U.S. Supreme Court finds worthwhile, then the Supreme Court will consider the question and determine whether Trump has immunity.
The Supreme Court has already considered the question of presidential immunity; in 1982, the Supreme Court determined that presidents are completely immune from civil damages that arise from a president’s official acts as president. But when a president’s speech qualifies as an official act is still debatable – and that is the question being considered in the D.C. Court of Appeals.
The DOJ’s brief emphasized an understanding of the challenges of the presidency and the corresponding need for some presidential immunity.
In “all contexts,” the DOJ wrote, “questions of presidential immunity must be approached with the greatest sensitivity to the unremitting demands of the Presidency.”
Yet in the case at hand, the DOJ argued, Trump should not be able to claim absolute immunity. But, the DOJ suggested that the appeals court should avoid drawing “firm lines on whether [the] president can face liability for speech related to electoral or political concerns,” CNN reported.
“Instead, the department asked the D.C. Circuit to issue a ‘narrow’ ruling, focused solely on the assertion by Trump’s attorneys that he should be immune to civil lawsuits for presidential speech even if that speech incited violence.”
Civil Procedures
The civil cases against Trump are not yet being considered on their factual merits, but instead being tested for the strength of their legal claims against Trump.
A district court has already weighed in, denying a Trump motion to dismiss the case, finding that Trump was not absolutely immune.
Donald Trump appealed the motion denial, which is why the D.C. Court of Appeals is now considering the question. The appeals court asked the DOJ to weigh in, which is why the DOJ submitted the brief.
“The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President’s Trump’s January 6 speech incited the subsequent attack on the Capitol,” the DOJ brief said.
“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.”
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Harrison Kass is the Senior Editor at 19FortyFive. An attorney, pilot, guitarist, and minor pro hockey player, Harrison joined the US Air Force as a Pilot Trainee but was medically discharged. Harrison holds a BA from Lake Forest College, a JD from the University of Oregon, and an MA from New York University. Harrison listens to Dokken.
