The former president has argued for presidential immunity in cases that seek to link his actions to the 2021 Capitol riot.
The United States Justice Department has issued a brief saying former President Donald Trump can be sued by injured Capitol Police officers and Democratic legislators over the insurrection at the US Capitol on January 6, 2021.
The announcement comes as a federal court case tests Trump’s legal vulnerability and the limits of executive power.
The department wrote that, although a president enjoys broad legal latitude to communicate to the public on matters of concern, “no part of a President’s official responsibilities includes the incitement of imminent private violence. By definition, such conduct plainly falls outside the President’s constitutional and statutory duties”.
The brief was filed by lawyers from the Justice Department’s civil division and has no bearing on a separate criminal investigation by a department special counsel into whether Trump can be criminally charged over efforts to undo Democrat Joe Biden’s victory in the 2020 presidential election.
In fact, the lawyers note that they are not taking a position with respect to potential criminal liability for Trump or anyone else.
The Justice Department wrote that it also takes no view on a lower court judge’s conclusion that those who sued Trump have “plausibly” alleged that his speech caused the riot. Nevertheless, the department said that an appeals court should reject Trump’s claim that he is immune from the lawsuits.
The Justice Department cautioned said the “court must take care not to adopt rules that would unduly chill legitimate presidential communication” or saddle a president with meritless lawsuits.
“In exercising their traditional communicative functions, Presidents routinely address controversial issues that are the subject of passionate feelings. Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence,” the department wrote.
Trump is appealing a decision by a federal judge in Washington, DC, who last year rejected efforts by the former president to toss out the civil lawsuits filed by legislators and two Capitol police officers. US District Judge Amit Mehta ruled that Trump’s words during a rally before the violent storming of the Capitol were likely “words of incitement not protected by the First Amendment”.
The lawsuits – filed by Democratic Representative Eric Swalwell and officers James Blassingame and Sidney Hemby, and later joined by other House Democrats – argue that Trump and others made “false and incendiary allegations of fraud and theft”.
The lawsuits also allege that “in direct response to the Defendant’s express calls for violence at the rally, a violent mob attacked the US Capitol”.
They cite a federal civil rights law that was enacted to counter the Ku Klux Klan’s intimidation of officials. The suits describe in detail how Trump and others spread baseless claims of election fraud, both before and after the 2020 presidential election was declared, and charge that the former president and his allies helped to rile up thousands of rioters before they stormed the Capitol.