In the aftermath of the Jan. 6 attack on the U.S. Capitol, among those who filed lawsuits against Donald Trump were police officers injured during the insurrectionist violence. The former president and his lawyers have responded to the ongoing civil suits by insisting that he has “absolute immunity” in actions related to his term in office.
About a year ago, U.S. District Judge Amit Mehta rejected the argument, ruling that Trump could be held liable for damages. “To deny a president immunity from civil damages is no small step. The court well understands the gravity of its decision,” the jurist wrote in his decision. “But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity.”
The Republican and his legal defense team, not surprisingly, appealed the ruling, hoping to convince the D.C. Circuit of Appeals that the “absolute immunity” defense has merit. It was against this backdrop that the Justice Department decided to weigh in — concluding that police officers can, in fact, sue Trump. NBC News reported:
Attorneys for the Justice Department’s Civil Division said in a court filing in the U.S. Circuit Court of Appeals for the District of Columbia that Trump does not have absolute immunity from multiple civil lawsuits, filed by police officers and members of Congress, that seek to hold him liable for damages stemming from the riot.
“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 brief said. “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.”
At first blush, this might seem unremarkable, but as a general matter, the Justice Department — a part of the executive branch — tries to protect the presidency at an institutional level. It’s why, even after Trump left office, the department sided with the Republican in the case brought by E. Jean Carroll.
But the Justice Department is not backing Trump in these Jan. 6 civil suits, concluding that while presidents often enjoy immunity from civil suits in matters related to presidential speech, that immunity does not include “incitement of imminent private violence.”
Or put another way, DOJ lawyers believe presidents can’t be sued for things they say while in office — unless a president is inciting a riot.
Trump responded to the court filing by issuing an odd written statement, praising his pre-riot remarks, complaining about the U.S./Mexico border, and whining about “witch hunts and hoaxes.” Time will tell whether appellate judges find the Justice Department’s conclusions persuasive, but in case anyone needs a refresher, it’s worth pausing to appreciate just how many relevant civil suits have already been filed. A couple of months after the attack on the Capitol, the former president insisted that the rioters posed “zero threat.” He added that the violent insurrectionists were merely “hugging and kissing the police” during the assault. The officers who filed the aforementioned lawsuits apparently have a very different version of events.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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