Former President Donald Trump can be sued by injured Capitol Police officers and Democratic lawmakers over the Jan. 6, 2021, insurrection at the U.S. Capitol, the Justice Department said Thursday in a federal court case testing 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 of 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 ahead of the Capitol riot. 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’s immune from the lawsuits.
The Justice Department cautioned that 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, who last year rejected efforts by the former president to toss out the conspiracy civil lawsuits filed by lawmakers and two Capitol police officers. U.S. District Judge Amit Mehta ruled that Trump’s words during a rally before the violent storming of the U.S. Capitol were likely “words of incitement not protected by the First Amendment.”
The lawsuits, filed by Rep. Eric Swalwell, D-Calif., 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, and in direct response to the Defendant’s express calls for violence at the rally, a violent mob attacked the U.S. Capitol.”
The suits cite a federal civil rights law that was enacted to counter the Ku Klux Klan’s intimidation of officials. They 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 they helped to rile up the thousands of rioters before they stormed the Capitol.