WASHINGTON — The Justice Department told a federal appeals court on Thursday that it should reject former President Donald J. Trump’s claims that he is absolutely immune from being sued over his actions related to the attack on the Capitol by his supporters on Jan. 6, 2021.
Members of Congress and Capitol Police officers have contended in a lawsuit that Mr. Trump incited the attack, including by delivering a fiery speech falsely claiming that the 2020 election had been stolen and urging his supporters to march on the Capitol. In a 23-page brief, lawyers for the Justice Department’s civil division urged the appeals court to allow their lawsuit to proceed.
“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.”
If the appeals court were to side with the Justice Department and allow the Jan. 6 lawsuit to proceed, it could add to the mountain of legal costs Mr. Trump faces as he pursues his 2024 campaign for president.
Understand the Events on Jan. 6
The Supreme Court has held that the Constitution gives presidents immunity from being sued over their official actions. The lawsuits against Mr. Trump, which contend that his speech incited the Capitol attack, have raised the question of whether his speaking to his supporters about the 2020 election results fell within his official job responsibilities.
The Justice Department’s filing was notable in part because the department usually takes a broad view of executive power and defending the prerogatives of the presidency. But its brief asserted that if Mr. Trump did incite violence then the speech fell outside a president’s legally shielded official responsibilities.
How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.
However, the department’s brief did not endorse the idea that Mr. Trump instigated the attack.
“The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s Jan. 6 speech incited the subsequent attack on the Capitol,” the brief said. “But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this court should reject the categorical argument President Trump pressed below and renews on appeal.”
The lawsuit is not the only pending case that tests the limits of when Mr. Trump was acting in his capacity as president. A separate court for the District of Columbia is currently weighing whether, as a matter of employment law, he was acting within his official capacity when he spoke disparagingly of a writer, E. Jean Carroll, who accused him of raping her in the 1990s and is suing him for defamation.
In that case, however, the Justice Department joined Mr. Trump’s legal team in arguing that because Mr. Trump was the president at the time and made his allegedly defamatory comments about Ms. Carroll in response to reporters’ questions, he was acting within his official capacity. If so, the department could substitute itself as the defendant — as it is trying to do — and have the case dismissed as a matter of sovereign immunity.
Lawyers for Mr. Trump have argued that any public speech by a president on matters of public concern are part of his presidential responsibilities and so the case against him should be dismissed. They also argued that his speech was protected by the First Amendment.
But Judge Amit P. Mehta of the Federal District Court for the District of Columbia ruled last year that the lawsuits against the former president could proceed. He cited Mr. Trump’s various communications before and on Jan. 6, like inviting supporters to come to Washington on the day Congress would certify Mr. Biden’s election victory and urging them to march to the Capitol and “fight like hell,” amounted to a “call to action.”
Mr. Trump’s lawyers appealed that ruling to the D.C. Circuit, again arguing that presidents are always immune from any civil suits based on “speech on matters of public concern.” In December, the appeals court asked the Justice Department for its view on the matter.
The combined lawsuits against Mr. Trump over the Jan. 6 attack were brought by various Democratic members of Congress along with Capitol Police officers. The lawsuits also name other defendants, like the Proud Boys and Oath Keepers, who are not part of the current appeal.
