by (Bloomberg) — The Justice Department said Thursday that Donald Trump is not entitled to absolute immunity from civil suits seeking to hold him accountable for the Jan. 6, 2021 attack on the U.S. Capitol.
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Government lawyers agreed with Trump that presidents are entitled to robust protections from prosecution for their official duties. But in a newly filed summary judgment, they disagreed that the charges in the Jan. 6 cases against the former president — that he incited imminent violence — would entitle him to that immunity at this stage of the trial , while also making it clear that they weren’t. • take a position on whether the underlying claims were valid.
“In the opinion of the United States, such incitement to imminent private violence would not fall within the outer perimeter of the office of the President of the United States,” the Justice Department lawyers wrote.
Trump has argued that he cannot be prosecuted at all for statements leading up to the attack because speaking on matters of public interest fell within the “outer perimeter” of his presidential duties.
The position risks legal complications and political backlash. The administration was embroiled in a lawsuit on Jan. 6 over Trump’s role while a federal criminal investigation is underway. The department has historically espoused a broad interpretation of the constitutional separation of powers that protects a current or former president from prosecution for official acts, so taking a stand against Trump risks accusations of political bias.
A federal district judge previously rejected Trump’s immunity defense against a trio of lawsuits filed by congressional Democrats and Capitol police officers responding to the violence at the Capitol. Trump’s attorneys have urged the U.S. Court of Appeals for the DC Circuit to reverse that ruling and dismiss the claims against him.
The Justice Department’s break with Trump is likely to be popular with Democrats and Trump critics. The department drew criticism from the left early in the Biden administration when it supported Trump’s position that a federal law protecting government employees from prosecution for official duties protected him from a defamation lawsuit; that case is pending.
The US is not a party to the Jan. 6 civil suit and had not asked to join — the DC Circuit had invited the government to share its position in a summary judgment after a three-judge panel heard arguments in December. In a sign of the legal complexities and political sensitivities at stake, the department had asked for two deadline extensions before submitting its assignment.
The Justice Department’s stance on the immunity issue doesn’t guarantee Trump will lose, but it’s a significant setback to his cause. Attorneys for Trump and plaintiffs have until March 16 to respond.
Trump’s position is that the U.S. Supreme Court has made it clear that immunity applies to any conduct that falls within the “outer perimeter” of a president’s official duties, citing a 1982 decision, Nixon v. Fitzgerald. His lawyers argue that judges should not engage in “substantive analysis” and must fathom the “political context” of a president’s public discourse.
At the Dec. 7 hearing for the DC Circuit, Trump attorney Jesse Binnall argued that the immunity may not apply to actions by a president that were “purely personal,” but that any remarks made on the “bullying pulpit” would be covered. Responding to a series of hypothetical scenarios put forward by the judges, Binnall said Trump cannot be indicted even if he explicitly urged his supporters to “burn down Congress.”
The plaintiffs have countered that the allegations in their lawsuits — that Trump conspired to incite violence and interfere with Congressional certification of the election results and the peaceful transfer of power — could not be considered part of his duties as president. This kind of immunity does not apply to anything a president says while in office, they argued.
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