Mar 2, 2023 - Politics & Policy

Trump can be sued by police over Jan. 6, DOJ says

Photo of Donald Trump speaking from a podium

Former President Trump speaks during an event at his Mar-a-Lago home on Nov. 15, 2022 in Palm Beach, Florida. Photo: Joe Raedle via Getty Images

Former President Trump can be held liable for damages for his speech on the day of the Jan. 6 insurrection, the Department of Justice said Tuesday.

Why it matters: Trump, who faces a lawsuit brought by two U.S. Capitol Police officers and 11 Democratic Congress members, has argued that he is protected by the absolute immunity conferred to a president acting in an official capacity.

What they're saying: "Speaking to the public on matters of public concern is a traditional function of the Presidency, and the outer perimeter of the President’s Office includes a vast realm of such speech," attorneys for the Justice Department’s Civil Division wrote in a Thursday filing.

  • "But that traditional function is one of public communication. It does not include incitement of imminent private violence."
  • "Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence," they added, noting that the scope of a president’s absolute immunity should be informed by principles shaped by the Supreme Court.
  • They pointed to a 1969 ruling that determined the First Amendment does not protect speech "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
  • The DOJ emphasized that it is not saying Trump incited the insurrection but that the claims in the lawsuit describe conduct and speech outside the scope of presidential duties.

Background: The lawsuit seeks to hold Trump liable for physical and psychological injuries suffered during the insurrection, when he called on his supporters to "fight like hell" to prevent the certification of 2020 election results.

  • It was filed under the Ku Klux Klan Act, a statute written after the Civil War that allows for damages in cases involving force, threats or intimidation intended to hinder government officials from discharging their duties.

Worth noting: A district court already rejected Trump's claims of absolute immunity in the case.

  • An appeals court asked the DOJ to provide an opinion after debating the case in December.
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