A federal appeals court ruled on Dec. 29 that former President Donald Trump is not immune from civil lawsuits relating to the Jan. 6, 2021, breach of the U.S. Capitol.
“On appeal, the only question is whether President Trump has demonstrated his entitlement to official-act immunity,” reads the Dec. 29 order in a lawsuit filed in 2021 by Capitol Police veteran Conrad Smith and seven of his colleagues.
President Trump’s attorneys had argued that he should be granted immunity because his alleged actions around Jan. 6 amounted to official speech on “matters of public concern.”
But the three-judge panel—consisting of Judges Sri Srinivasan, Judith Rogers, and Gregory Katsas—disagreed.
“That argument fails” because President Trump’s commentary and actions around Jan. 6 bear “no inherent connection to the essential distinction between official and unofficial acts” because they were not part of his official duties to share “matters of public concern” and so he’s ineligible to presidential immunity.
President Trump is entitled to request a rehearing before a full panel of judges on the U.S. Court of Appeals. The case could also make its way to the U.S. Supreme Court.
A request for comment on the judgment sent to the Trump campaign was not immediately returned.
More Details
Even though President Trump said in his Jan. 6 speech that protesters should “peacefully and patriotically make your voices heard,” his critics have seized on a portion of his remarks where he said “we fight like hell” and “if you don’t fight like hell, you’re not going to have a country anymore” as a call for violence.The former president has, on numerous occasions, denied calling for violent protests while insisting he meant his remarks about fighting like hell metaphorically.
“The lies of this conspiracy intentionally energized white supremacists and violent extremist groups and actively encouraged them to coordinate the violent attack on the Capitol,” Damon Hewitt, president and executive director of the Lawyers’ Committee for Civil Rights, said in a statement in August 2021, which claimed that President Trump’s actions ahead of Jan. 6 put the plaintiffs in harm’s way.
At the time, Mr. Smith and his co-plaintiffs issued the following statement: “On Jan. 6, we tried to stop people from breaking the law and destroying our democracy. Since then, our jobs and those of our colleagues have become infinitely more dangerous. We want to do what we can to make sure the people who did this are held accountable and that no one can do this again.”
President Trump has rejected claims that he in any way incited violence on Jan. 6, 2021, pointing to remarks he made that called for demonstrators to protest peacefully. In a bid to dismiss the lawsuit, his attorneys argued that the complaint should be tossed because he, as president, was eligible for immunity.
Blassingame v. Trump
A separate lawsuit called Blassingame v. Trump was ruled on at the beginning of December by the same three-judge panel on the Washington-based U.S. Court of Appeals.“To deny a president immunity from civil damages is no small step,” Judge Mehta wrote at the time. “The court well understands the gravity of its 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 appeals court judgment found that President Trump’s attorneys failed to prove that he has presidential immunity from suits regarding his actions leading up to and on Jan. 6.
“In arguing that he is entitled to official-act immunity in the cases before us, President Trump does not dispute that he engaged in his alleged actions up to and on January 6 in his capacity as a candidate. But he thinks that does not matter. Rather, in his view, a president’s speech on matters of public concern is invariably an official function, and he was engaged in that function when he spoke at the January 6 rally and in the leadup to that day. We cannot accept that rationale,” Judge Srinivasan, an Obama appointee, wrote in the ruling.
“While presidents are often exercising official responsibilities when they speak on matters of public concern, that is not always the case. When a sitting president running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity,” the judge added.
In their latest Dec. 29 ruling, the judges cited the Blassingame v. Trump judgment and said that the case brought by Mr. Smith and his colleagues is “indistinguishable” in all relevant aspects, and so they issued what amounts to an identical determination that President Trump is not immune from civil lawsuits related to Jan. 6.
