DOJ Argues Trump Shouldn’t Have Absolute Immunity in Jan. 6 Lawsuits

Former President Donald Trump arrives at Trump Tower the day after FBI agents raided his Mar-a-Lago Palm Beach home, in New York on Aug. 9, 2022. David 'Dee' Delgado/Reuters

The U.S. Department of Justice has stated that it doesn’t back former President Donald Trump’s argument that he has absolute immunity from civil lawsuits in connection with the Jan. 6, 2021, U.S. Capitol breach.

In a court filing submitted (pdf) on March 2 to the U.S. Court of Appeals for the District of Columbia Circuit, DOJ lawyers wrote that Trump’s lawyers “advance only a single, categorical argument: A President is always immune from any civil suits based on his ’speech on matters of public concern' ... even if that speech also constitutes incitement to imminent private violence.”

“The United States respectfully submits that the Court should reject that categorical argument.” the DOJ wrote. “And because that is the only argument the former President has pressed on appeal, the Court could affirm the district court’s order on that narrow ground without attempting to comprehensively define the boundaries of the President’s immunity for his speech on matters of public concern—including when and how to draw a line between the President’s official and electoral speech.”

Protesters loyal to President Donald Trump rally at the U.S. Capitol in Washington on Jan. 6, 2021. Jose Luis Magana/AP Photo

The DOJ made the filing in response to consolidated cases including lawsuits launched by several members of Congress and U.S. Capitol Police officers, who are attempting to hold Trump liable for what they say are psychological and physical injuries.

The March 2 filing from the DOJ doesn’t back any claims that the dozen or so lawmakers made in alleging that Trump incited the U.S. Capitol breach. Instead, the filing notes that DOJ lawyers “plausibly allege” Trump’s speech triggered the breach.

“The United States does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events,” DOJ lawyers stipulated in a footnote.

A 1982 Supreme Court ruling argued that presidents are absolutely immune from civil damages that come via their official acts as president.

In 2022, Trump’s lawyers asked the District of Columbia court to rule that he has absolute immunity from the Jan. 6-related lawsuits. His attorneys said that “the actions of rioters do not strip President Trump of immunity.”

They further wrote (pdf) that “in the run-up to January 6 and on the day itself, President Trump was acting well within the scope of ordinary presidential action when he engaged in open discussion and debate about the integrity of the 2020 election.”

As for Trump, he has repeatedly pointed to a speech he made during the Jan. 6 “Stop the Steal” rally, in which he called on demonstrators to “peacefully and patriotically” make their voices heard. On the same day, in what is still the most recent post on the former president’s Facebook account—which was reinstated in February—Trump asked for protesters to be peaceful.

“I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order — respect the Law and our great men and women in Blue. Thank you!” his post read.

Trump hasn’t responded to the DOJ’s March 2 filing. The Epoch Times has contacted a spokesperson for comment.

Reps. Bonnie Watson Coleman (D-N.J.), Pramila Jayapal (D-Wash.), Maxine Waters (D-Calif.), Jerrold Nadler (D-N.Y.), Henry Johnson (D-Ga.), Stephen Cohen (D-Tenn.), Barbara Lee (D-Calif.), Veronica Escobar (D-Texas), Marcy Kaptur (D-Ohio), and former Rep. Karen Bass (D-Calif.), are among the lawmakers who have filed lawsuits against Trump.

Bass and Rep. Eric Swalwell (D-Calif.) filed a lawsuit in March 2021 against Trump, former New York City Mayor Rudy Giuliani, Donald Trump Jr., and former Rep. Mo Brooks (R-Ala.).

U.S. Capitol Police officers James Blassingame and Sidney Hemby have filed a suit against Trump, alleging that his speech incited protesters to breach the Capitol.

Previously, U.S. District Judge Amit Mehta wrote he would drop (pdf) Trump Jr., Giuliani, and Brooks from the lawsuits and rule that their speeches at the Jan. 6 rally and related actions don’t mean they’re part of an alleged conspiracy, as was claimed.

Meanwhile, a DOJ special counsel, Jack Smith, is leading a federal criminal investigation into Trump and his allies following a Nov. 18, 2022, announcement from Attorney General Merrick Garland. It came just three days after Trump launched his third presidential bid.