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The Justice Department argues in a new legal filing that President Donald Trump can be held liable for his January 6 speech where he told a crowd of supporters to ‘fight like hell’ before a crowd attacked the Capitol.
The new 32-page filing, released after months of deliberations, cites a Reconstruction-era statute targeting the Ku Klux Klan that allows for damages when intimidation threats prevent officials from being able to carry out their duties.
‘Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence,’ DOJ lawyers wrote. But they argued that First Amendment protections don’t apply to speech ‘directed at inciting or producing imminent lawless action.’
The government lawyers also argue that while courts have ruled the president does not enjoy absolute immunity from his official acts, ‘It is not a rule of absolute immunity for the President regardless of the nature of his acts.’
Justice Department lawyers argue in a new filing that former President Donald Trump doesn’t enjoy absolute immunity for telling a January 6 crowd to ‘fight like Hell!’
Capitol Police officers and lawmakers are suing, arguing that Trump should be held liable for physical and psychological injuries they sustained when a pro-Trump mob stormed the Capitol.
They argued ‘persuasively’ that Trump’s statements ‘encouraged imminent private violent action and was likely to produce such action.’
A footnote highlights that the argument applies only to a ‘private suit for damages.’
‘In addressing that question, the United States does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events,’ the lawyers wrote – as DOJ continues its wide-ranging January 6 probe.
The Klan statute ‘prohibits conspiring to impede officers of the United States in the discharge of their duties or to prevent any person from accepting a federal office,’ the government wrote.
In the filing, the DOJ urged an appeals court to reject former President Donald Trump’s claim that he is automatically immune from lawsuits over his supporters’ assault on the U.S. Capitol on Jan. 6, 2021.
The U.S. Court of Appeals for the District of Columbia Circuit had asked for the Justice Department’s view as it weighs whether to allow civil lawsuits against Trump over the riot.
Trump had argued that he was acting in his official capacity as president when he told a crowd of supporters at the STOP THE STEAL rally that he would never concede the 2020 election and to ‘fight like hell’ ahead of the congressional certification of President Joe Biden’s electoral victory.
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The appeals court heard arguments in the case in December.
The filing comes in a suit where Capitol Police officers and lawmakers want to hold Trump liable for injuries
Trump’s speech near the White House came before a pro-Trump mob stormed the Capitol
The government ‘does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events,’ the lawyers wrote in the filing
The U.S. Supreme Court held in 1982 that presidents could not be sued over their official acts. But U.S. District Judge Amit Mehta ruled last February that Trump’s fiery speech on Jan. 6 did not fall within his official scope of duties, allowing the lawsuits to proceed. Trump is appealing that ruling.
The Justice Department said in Thursday’s filing that it was not taking a stance on whether Trump’s speech encouraged the Capitol riots. However, it told the court that ‘incitement of imminent private violence’ would not fall within the scope of a president’s official duties.
Lawyers for Trump and the plaintiffs in the lawsuits did not immediately respond to requests for comment.
Democrats in Congress and police officers have filed several civil lawsuits over the Capitol riots, with some alleging that Trump conspired with others to block the certification of Biden’s 2020 election win.
The Justice Department has weighed in previously on litigation targeting U.S. officials’ Jan. 6 conduct.
In July 2021, it rejected a request by Mo Brooks, who was a Republican Congressman at the time, to defend him from a lawsuit by Democratic House member Eric Swalwell. The department said if someone did incite an attack on the U.S. Capitol, it would not fall ‘within the scope of employment of a representative – or any federal employee.’
At the same time, the Justice Department is defending Trump in a defamation case from the writer E. Jean Carroll, who has accused the former president of raping her in the mid-1990s over statements he made while in office disparaging Carroll and her claims.
Justice Department lawyers have said Trump is immune from the defamation lawsuit. Still, in January, a different Washington appeals court heard arguments on whether Trump was acting as president and is expected to rule on the immunity question.
