According to a court filing on Thursday, the Department of Justice has determined that former President Donald Trump can be sued by two U.S. Capitol Police officers for his alleged role in the Jan. 6, 2021, Capitol riot. Attorneys for the DOJ’s civil division argued in front of a federal appeals court in Washington, D.C., that Trump’s claim of “always” being immune from civil suits based on his public remarks is “categorical” and should be rejected. They clarified that the traditional function of a U.S. President’s office is to communicate with the public on matters of public concern and not to incite imminent private violence, as alleged by the plaintiffs in this case.
DOJ attorneys wrote:
“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,”
“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.”
Trump attempted to dismiss the civil lawsuits brought by the two police officers and members of Congress but was unsuccessful. The judge ruled that Trump’s speech on Jan. 6, urging his supporters to “fight like hell” and directing them towards the Capitol, could be seen as “a call for collective action.” Trump appealed, and after hearing arguments in December, the appellate judges asked the DOJ to weigh in on the matter.
It is highly improbable that Trump intended to incite physical violence when he urged his supporters to “fight like hell,” as he is known for his straightforward communication style that often does not mince words. Nevertheless, the DOJ seems to be trying various legal strategies to hold Trump accountable, likely in an attempt to impede his 2024 Presidential campaign.
The Justice Department attorneys determined in their 32-page brief filed on Thursday that the district court was correct in rejecting Trump’s claim of absolute immunity when speaking “on a matter of public concern.” However, they emphasized that the DOJ did not express an opinion on whether Trump’s speech incited the Capitol riot. They cited legal precedent, stating that while the President should have “broad latitude” to speak, they should not be immune from “incitement of imminent private violence” to protect the public interest. Trump was impeached in the House on the charge of “incitement of insurrection” but was acquitted in the Senate.