- Justice Department attorneys told a federal appeals court that former President Donald Trump does not have absolute immunity from civil lawsuits stemming from the Jan. 6, 2021, Capitol riot.
- The attorneys stressed that the U.S. was not expressing a view on whether Trump's speech incited the Capitol riot.
- A federal judge had previously ruled against Trump's efforts to dismiss lawsuits filed by the two police officers and members of Congress.
Former President Donald Trump can be sued by two U.S. Capitol Police officers seeking to hold him accountable for the Jan. 6, 2021, Capitol riot, the Department of Justice determined in a court filing Thursday.
Attorneys for the DOJ's civil division told a federal appeals court in Washington, D.C., that it should reject Trump's "categorical argument" that the U.S. president "is always immune from any civil suits" based on his public remarks, "even if that speech also constitutes incitement to imminent private violence."
"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," the DOJ attorneys wrote. "But that traditional function is one of public communication. It does not include incitement of imminent private violence of the sort the district court found that plaintiffs' complaints have plausibly alleged here."
A U.S. District Court judge in February 2022 ruled against Trump's efforts to dismiss civil lawsuits by the two police officers and members of Congress. The judge wrote that Trump's speech on Jan. 6, in which he urged a crowd of his supporters to "fight like hell" and then directed them toward the Capitol, could be seen as "a call for collective action."
Trump appealed. After hearing arguments in December, the appellate judges had asked the DOJ to weigh in on the dispute.
In the 32-page brief filed Thursday, the Justice Department attorneys determined the district court was right to reject Trump's assertion of absolute immunity when he is speaking "on a matter of public concern."
But they stressed that the U.S. was not expressing a view on whether Trump's speech incited the Capitol riot.
They cited legal precedent noting that the president should be given "broad latitude" to speak without fear that their off-the-cuff remarks "will give rise to litigation and potential liability." But denying absolute immunity protection to the "incitement of imminent private violence" should not "unduly chill" the president's speech, they determined.
Trump was impeached in the House on an article of "incitement of insurrection" after the riot. He was acquitted in the Senate.