DOJ rejects Trump claim of ‘categorical’ immunity from Jan. 6 lawsuits

Longstanding court precedents protect presidents from civil litigation related to actions they take in their “official” capacity. But determining when presidents toggle between their official duties and their political ones — which are often blended and unclear — is complicated, and courts have typically avoided drawing bright lines.

DOJ on Thursday similarly urged a three-judge appeals court panel to avoid drawing such distinctions, even as it asked the court to dismiss Trump’s sweeping interpretation of his own immunity.

“Those are sensitive questions of fundamental importance to the Executive Branch, and this unusual case would be a poor vehicle for resolving them,” Justice Department attorney Sean R. Janda wrote.

Notably, in a footnote, the department seemed to allude to an ongoing criminal special counsel investigation of Trump, emphasizing that the agency’s opinion about Trump’s potential civil liability had no bearing on pending criminal matters related to the Jan. 6 attack on the Capitol.

“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,” according to the department.

The department’s brief is a notable benchmark in the long-running lawsuits that arose from the Capitol attack. Several members of Congress and Capitol Police officers sued Trump and his allies for damages, contending that they helped incite Trump’s rally crowd to violence that day.

U.S. District Judge Amit Mehta ruled last year that they had made a plausible case, permitting the suit to move forward. He noted that while presidents typically enjoy sweeping immunity from lawsuits for their public remarks, Trump’s speech arguably crossed a line into incitement of violence that would not be protected.

Trump, during his rally on Jan. 6, 2021, urged backers to “fight like hell” to prevent President Joe Biden from taking office in a speech laden with heated rhetoric. Though he urged supporters to march “peacefully and patriotically” to the Capitol, Mehta noted that it was a swift aside in a speech otherwise loaded with apocalyptic language. Even as Trump spoke, members of the rally crowd marched on the Capitol — at Trump’s urging — to pressure Republican lawmakers to oppose certification of the election. Many members of that crowd eventually joined a mob that battered its way past police lines and into the Capitol, forcing lawmakers and then-Vice President Mike Pence to flee for safety.

The U.S. government is not a party to the civil suits, but the D.C. Circuit Court of Appeals panel weighing Trump’s effort to reverse Mehta’s ruling solicited DOJ’s views on the matter in December. That request from Chief Judge Sri Srinivasan, and Judges Gregory Katsas and Judith Rogers, followed oral arguments in December between an attorney for Trump and a lawyer for lawmakers and police officers claiming damages from the riot and ransacking of the Capitol two years ago.

The appeals court’s request also put the department — which typically defends the broad scope of executive power — in a tricky spot, particularly as special counsel Jack Smith continues to probe whether Trump bears criminal responsibility for his efforts to subvert the 2020 election. Many defendants charged for their actions at the Capitol on Jan. 6 have pointed to Trump’s conduct and remarks as a key influence and suggested that they took their cues from him.

Department lawyers stressed that they were not endorsing the legal theories or factual claims made in the various suits, but the government’s brief says that if a president issued an urgent call for private citizens to commit an attack that would or should be beyond the broad immunity traditionally afforded to occupants of the Oval Office.

“In the United States’ view, such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States,” the DOJ brief says.

The Justice Department said a president’s remarks of a purely personal or political nature might in theory be a potential trigger for civil liability, but that the courts need to take extraordinary care when trying to distinguish the official from the political.

“That principle … must be understood and applied with the greatest sensitivity to the complex and unremitting nature of the President’s Office and role, which are not amenable to neat dichotomies. The Supreme Court has emphasized, for example, that ‘there is not always a clear line’ between the President’s ‘personal and official affairs.”