The Department of Justice on Thursday declared that former President Trump can be held liable in court for the actions of the mob during the deadly January 6, 2021 insurrection and attempt to overturn the 2020 Presidential election.
Two U.S. Capitol Police officers were joined by 11 Democratic House members in seeking to sue Trump for physical and psychological injuries they suffered during the riot. Trump has argued that he’s protected from being sued under absolute immunity granted to a U.S. President in the performance of his official duties.
In its amicus brief, the DOJ told the U.S. DC Circuit Court of Appeals that a President cannot be absolutely immune for speech that’s a matter of public concern if that speech has been found to incite violence.
The litigation is still at a preliminary stage, and the DOJ was not, in its court filing, taking the position that Trump’s speech was in fact incitement; rather, the DOJ argued that he should not be allowed to claim immunity from these plaintiffs’ lawsuits.
The lawsuits were filed under a statute in the Ku Klux Klan Act of 1871. To this day, the more-than-150 year-old law protects Americans by allowing for damages when force, threats or intimidation are used to prevent government officials from carrying out their duties.
The riot on January 6 disrupted Congress in its certification of the election’s electoral college results.
In December judges on the DC Circuit Court of Appeals asked the DOJ to weigh in after they debated whether Trump was performing his official duties when he drew thousands of supporters to the Ellipse on the National Mall and told them, “If you don’t fight like hell you’re not going to have a country anymore.”
The “arguable incitement,” DC Circuit Judge Gregory G. Katsas said at the time, “makes this a hard case.”
The district court that first heard this suit has already ruled that the First Amendment does not protect Trump’s conduct.
Eight other Capitol Police officers have separately filed suit against Trump, as have members of the DC Metropolitan Police. Sandra Garza, the partner of Brian Sicknick, who died after battling the rioters, has also sued Trump and two rioters who deployed chemical spray amid the insurrection.
Meanwhile, Trump faces possible criminal prosecution by the DOJ as special counsel Jack Smith investigates his efforts to overturn the 2020 election results.