Former president Donald Trump can be held liable in court for the actions of the mob that overtook the U.S. Capitol on Jan. 6, 2021, the Justice Department said Thursday.
“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 for the Justice Department’s Civil Division wrote. “But that traditional function is one of public communication. It does not include incitement of imminent private violence.”
Two officers with the U.S. Capitol Police, joined by 11 Democratic House members, are seeking to hold Trump liable for physical and psychological injuries they suffered during the riot. Trump has argued he is protected from the lawsuit by the absolute immunity conferred on a president performing his official duties.
The lawsuit was filed under a statute, written after the Civil War in response to the Ku Klux Klan, that allows for damages when force, threats or intimidation are used to prevent government officials from carrying out their duties.
An appeals court in December debated whether Trump was doing his job when he drew thousands of supporters to Washington with falsehoods and told them they had to “fight like hell” to keep Congress from certifying the results of the 2020 election. Undecided, it asked the Justice Department to offer an opinion.
The response took many months to craft — twice, the Justice Department asked for another month.
Now it has weighed in. “Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence,” the Justice Department attorneys said, referencing a concern raised at oral argument. They suggested looking to another Klan-inspired court case — the 1969 ruling that speech “directed at inciting or producing imminent lawless action” or “likely to incite or produce such action” is not protected by the First Amendment.
“Just as denying First Amendment protection to incitement does not unduly chill speech in general, denying absolute immunity to incitement of imminent private violence should not unduly chill the President in the performance of his traditional function of speaking to the public on matters of public concern,” the attorneys wrote.
The district court that first heard this suit already ruled that the First Amendment does not protect Trump’s conduct.
A dozen former White House and Justice Department officials from both Democratic and Republican administrations previously urged the court to deny Trump’s claim of immunity, calling this case the “rare but clear circumstance in which a President broke the law while acting well beyond any official capacity.”
The lawsuit is still at a preliminary stage, and the Justice Department emphasized that it was not saying the allegation that Trump incited the Jan. 6 riot is true — only that the “plausibly allege[d]” claims describe conduct outside the scope of a president’s official duties.
Controversially, the Justice Department under President Biden has continued to defend Trump’s claim of absolute immunity in a defamation case brought by a woman who accused Trump of raping her in the mid-1990s. The former president responded by saying “it never happened,” and “she’s not my type.”
Though the administration did not view Trump’s language as “appropriate,” an attorney for the Justice Department said at oral argument in January that Trump was answering a reporter’s question as part of a president’s responsibility “to be responsive to the media and public.”
A different D.C. court is weighing whether that lawsuit against Trump can go forward.
Other Capitol Police officers have sued Trump in separate cases, as have members of the D.C police. The longtime partner of Brian D. Sicknick, who died after battling rioters, has sued Trump along with two members of the mob who deployed chemical spray. D.C.’s attorney general has sued far-right groups whose members were involved in the violent attack.
Trump also faces possible criminal prosecution by the Justice Department for his efforts to overturn the results of the 2020 presidential race.
