The Justice Department argued former President Donald Trump cannot be protected by presidential immunity in the civil investigation of the insurrection at the U.S. Capitol on Jan. 6, 2021.
An appeals court is reviewing several private lawsuits against Trump from Democratic members of Congress and Capitol Police officers that claim his rhetoric on the outcome of the 2020 election led to injuries or possible harm or violence.
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The department said on Thursday that “a President’s speech on a matter of public concern is not protected by absolute immunity if it constitutes incitement to imminent private violence,” according to court documents.
This is the first time the DOJ has confronted Trump’s many calls for presidential immunity for his conduct related to Jan. 6. Courts are still weighing the legality of allegations to determine if any charges can be brought against Trump.
A Washington, D.C., district court dismissed Trump’s claim of immunity, and the former president filed an appeal with the D.C. Court of Appeals in July 2022.
“President Trump is shielded by absolute presidential immunity because his statements were on matters of public concern,” his attorneys had argued in the appeal. “No amount of hyperbole about the violence of January 6, 2021, provides a basis for this Court to carve out an exception to the constitutional separation of powers.”
However, the DOJ filed a brief to the appeals court offering its opinion on the “absolute immunity of the president” and expressing its support of the district court’s verdict.
“The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s January 6 speech incited the subsequent attack on the Capitol,” the DOJ said in the brief. “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 DOJ is also investigating the former president for efforts to overturn the 2020 election. Attorney General Merrick Garland appointed special counsel Jack Smith to handle the case. Since November, Smith has been subpoenaing Trump allies and aides to testify before a grand jury.
Witnesses have been asked about conversations and meetings held by Trump in December 2020 and January 2021 regarding the 2020 election, as well as a pressure campaign against Vice President Mike Pence to stop him from certifying the election results.
He recently subpoenaed Pence, who has blasted Smith’s decision to subpoena him as “unprecedented” and possibly “unconstitutional.”
Sources said the DOJ could also move toward investigating Trump on seditious conspiracy and conspiracy to obstruct a government proceeding, similar to charges levied against those arrested for storming the Capitol. Another path could focus on charging Trump with fraud in connection to a false electors plot or his efforts to pressure the DOJ to overturn the results of the election.
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The special grand jury in Georgia recently released part of its report investigating efforts to overturn the election in Georgia, which detailed that there was evidence to charge at least one or more witnesses with perjury.
Trump’s lawyers said that if criminal indictments are brought against Trump, they are ready to “absolutely fight anything tooth and nail.”
