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Trump can be sued over Jan. 6 insurrection, Justice Department says

Washington – Former President Donald Trump can be sued in civil lawsuits alleging he was responsible for damages incurred during the Jan. 6, 2021, Capitol attack, the Justice Department said Monday, rejecting Trump's claims that he has absolute immunity from civil action.

The legal brief — filed by prosecutors at the request of judges on Washington, D.C.'s federal appeals court — explicitly states that the Justice Department has not determined that Trump should be held liable, either criminally or civilly, for the Capitol breach. Instead, the court documents urge the court to rule that the former president cannot be completely shielded from every action he took as president.

Members of Congress and U.S. Capitol Police officers sued Trump after the riot, alleging in several separate lawsuits that his remarks on the White House Ellipse on Jan. 6 to a group of his supporters incited the mob to go the grounds of the Capitol. While the Justice Department did not take a stance on the validity of those allegations, prosecutors wrote that presidential immunity does not "include incitement of imminent private violence."

Attorneys for the government argued in their friend-of-the-court brief that there are strong and broad protections for sitting U.S. presidents if they are sued for actions they take as president that fall within the scope of their duties.

"Questions of presidential immunity must be approached with the greatest sensitivity to the unremitting demands of the Presidency," they wrote. 

"The President is both the Chief Executive and an elected politician; his policy decisions are also political acts with political consequences," the Justice Department contended. "That traditional function is one of public communication and persuasion, not incitement of imminent private violence." 

D.C. District Court Judge Amit Mehta ruled almost a year ago that the former president was not immune from lawsuits, writing, "He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building…where those very politicians were at work to certify an election that he had lost." 

Trump appealed that ruling, and the appellate court is currently considering the case. His lawyers argue Supreme Court precedent requires complete protection from lawsuits. They say Mehta's decision was "wrong" because Trump's speech on Jan. 6 was political in nature, focused on areas of national import and was tied to his duties as president. 

"It is critical that the judiciary draw bright lines that it will not cross regarding overstepping into the regulation of executive function," Trump's brief argued. 

But in their filing Thursday, prosecutors wrote that the unusual circumstances of the case and their interpretation of the law warranted a narrow carve-out from  presidential immunity, "if the speech, viewed objectively and in context, both encouraged imminent private violence and was likely to produce such violence."

The Justice Department notably did not take a stance on whether presidents running for reelection can be held responsible for conduct carried out strictly in the campaign arena. 

"Every President engages in a wide array of speech that could be characterized as electoral, so the contours of immunity in this context are of great importance to the presidency and to future Presidents," Wednesday's brief said. "In the government's view, any decision about how to define the limits of absolute immunity in campaign contexts should await a case in which the relevant issues have been fully briefed and it is necessary to decide them."  

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