WASHINGTON (CN) — Absolute immunity is off the table, government lawyers told the D.C. Circuit on Thursday, weighing in on the fate of lawsuits that look to hold former President Donald Trump liable for the chaos his supporters brought to the U.S. Capitol on Jan. 6, 2021.
“No part of a President’s official responsibilities includes the incitement of imminent private violence," says the brief, signed by Sean Janda, an appellate attorney with the civil division of the Department of Justice. "By definition, such conduct plainly falls outside the President’s constitutional and statutory duties."
Trump's immunity shield notwithstanding, Janda continues, the Justice Department has not formed any opinion on the validity of the claims presented by the plaintiffs suing the former president.
The D.C. Circuit invited the government's perspective as it considers an appeal from Trump after a federal judge rejected his immunity defense and advanced a trio of civil lawsuits against him that stem from the insurrection.
All three lawsuits, which are now consolidated with Capitol Police officer James Blassingame as lead plaintiff, accuse Trump of violating the Ku Klux Klan Act, a civil rights law from 1871 that bans conspiracies aimed at the federal government.
Blassingame and his co-plaintiffs argued that Trump conspired to incite the violence that erupted on Jan. 6 to prevent Congress from certifying that he lost the election. They cite Trump’s speech at a "Stop the Steal" rally before the attack, where the then-president used phrases like, “We will not take it anymore,” “We will ‘stop the steal’” and “We’re going to have to fight much harder.”
Lawyers for Trump want the D.C. Circuit to find that Trump was speaking on matters of public concern, something within the president’s duties. The U.S. Supreme Court held in Nixon v. Fitzgerald in 1982 that the president has absolute immunity from liability concerning “official” actions taken in office.
The government argued Thursday, however, that Trump is reading Nixon too broadly.
“It is not a rule of absolute immunity for the President regardless of the nature of his acts,” the brief by Janda states.
The Justice Department rejected what it described as Trump’s argument that “a President is always immune from any civil suits based on his ‘speech on matters of public concern,’ — even if that speech also constitutes incitement to imminent private violence.”
Government lawyers also noted that rejecting Trump’s immunity here would leave room for the trial court to decide later “any renewed assertion of absolute immunity more narrowly focused on whether the former President’s speech actually constituted incitement.”
Prior to Thursday's filing, the government sought two deadline extensions for the amicus brief that was requested in December 2022, after the appeals court held briefing and oral argument.
Democratic Congressman Bennie Thompson and Eric Swalwell had brought one of the lawsuits at issue, but Thompson withdrew from the case after his appointment to serve as the chair of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol.
Attorneys for Trump have until March 16 to file a response to the government's brief.
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