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.
Although a president enjoys broad legal latitude to communicate to the public on matters of concern, the department wrote that “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 President 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 lawyers also wrote that they take 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 wrote that an appeals court should reject Trump’s claim of absolute immunity.
An email seeking comment was sent to an attorney for Trump on Thursday. Trump’s lawyers have argued he was acting within his official rights and had no intention to spark violence when he called on thousands of supporters to “march to the Capitol” and “fight like hell” before the riot erupted.
The case is among many legal woes facing Trump as he mounts another bid for the White House in 2024.
A prosecutor in Georgia has been investigating whether Trump and his allies broke the law as they tried to overturn his election defeat in that state. Trump is also under federal criminal investigation over top secret documents found at his Florida estate.
In the separate investigation into Trump and his allies’ efforts to overturn the election results, special counsel Jack Smith has subpoenaed former Vice President Mike Pence, who has said he will fight the subpoena.
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 Representative Eric Swalwell, 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.
The lawsuits seek damages for the physical and emotional injuries the plaintiffs sustained during the insurrection.
In its filing, 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,” the department wrote. “Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence.”
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