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Is Trump immune from civil lawsuits over Jan. 6? DOJ says no

The Justice Department said in a briefing that the former president’s defense of ‘absolute immunity’ should be rejected in this case

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Former President Donald Trump speaks at the East Palestine Fire Department as he visits the area in the aftermath of a train derailment in East Palestine, Ohio, Feb. 22, 2023.

Former President Donald Trump speaks at the East Palestine Fire Department as he visits the area in the aftermath of the Feb. 3 Norfolk Southern train derailment in East Palestine, Ohio, on Feb. 22, 2023. 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, March 2, in an ongoing federal court case testing the limits of executive power.

Matt Freed, Associated Press

The Justice Department on Thursday pushed for an appeals court to reject former President Donald Trump’s defense of presidential immunity after he was sued in civil court over allegations that he incited violence during the Jan. 6, 2021, Capitol insurrection.

Capitol Police officers James Blassingame and Sidney Hemby and 11 members of Congress allege that Trump incited violence and should be held responsible for the damages from the riot, according to NBC News.

The DOJ’s 32-page brief, filed at the request of the U.S. Circuit Court of Appeals for the District of Columbia, explores the extent of Trump’s presidential immunity, but does not address whether or not Trump should be found liable.

In response to the filing, a Trump spokesperson said, according to Reuters, “The D.C. Courts should rule in favor of President Trump in short order and dismiss these frivolous lawsuits.”

The duty of a president

Presidents typically possess “absolute immunity from damages liability predicated on his official acts” which allow him to act “fearlessly and impartially with the duties of his office,” as per the Nixon v. Fitzgerald ruling from 1982, the filing stated.

But the DOJ said it believes the speech the president gave to “secure or perpetuate incumbency” falls out of the purview of the president’s duties since the “Office of the President has no preference for who occupies it,” according to the brief added.

Presidents traditionally give speeches on matters of public concern, which are a part of their responsibilities in office, the brief said, but that “does not include incitement of imminent private violence of the sort the district court found that plaintiffs’ complaints have plausibly alleged here.”

The filing noted that while presidents are known to give speeches while campaigning for election, “partisan electioneering activities are not among the president’s official functions.”

The DOJ said it did not hold an opinion on the allegations against Trump but said that laying out the boundaries of presidential immunity is of importance to current and future presidents.

“The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s Jan. 6 speech incited the subsequent attack on the Capitol,” the 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.”

Piled up lawsuits against Trump

If the court sides with the DOJ, then the lawsuit would proceed and add to the burden of legal costs that Trump faces ahead of the 2024 presidential race, as The New York Times noted.

U.S. District Judge Amit Mehta earlier rejected the former president’s claim of immunity to dismiss Jan. 6 related lawsuits in February 2022.

“To deny a president immunity from civil damages is no small step. The court well understands the gravity of its decision. But the alleged facts of this case are without precedent,” Mehta wrote in an opinion at the time. He said Trump’s acts to try to overturn the result of the 2020 election weren’t “official acts.”

“Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a president’s speech,” Mehta wrote. “But the court believes this is that case.”

The former president faces another lawsuit from writer E. Jean Carroll, who claimed Trump sexually assaulted her in the ’90s, and is suing him for defamation. But in that case, the DOJ sided with Trump and stated that since he was responding to questions from reporters about the case, he was acting in an official capacity, per the Times.

Additionally, Trump faces a criminal investigation over the top secret government documents retrieved from his estate in Florida, and another investigation, led by a Georgia prosecutor, over whether or not he and his allies broke the law in efforts to overturn the 2020 election, according to The Associated Press.