Donald Trump can be sued by police officers over the violent Jan. 6 Capitol riot, the Justice Department’s civil division said in a court filing Thursday.
The former president does not have immunity from civil lawsuits brought by Capitol Police and others over the riot in which MAGA sycophants tried to violently overthrow the government, the filing said.
The brief was submitted as part of a lawsuit filed by two Capitol cops and 11 Democratic House lawmakers that sought to hold Trump liable for the psychological and physical injuries they suffered as a result of the riot. They filed the suit under the 150-year-old Ku Klux Klan Act of 1871, which makes it a federal crime to “conspire to prevent, by force, intimidation, or threat” officials from holding office or carrying out their official duties.
In response, Trump, who has tried to worm his way out of multiple legal troubles ahead of the 2024 election, argued that he had absolute immunity because he was performing his official presidential duties on Jan. 6.
U.S. District Judge Amit Mehta initially ruled that Trump’s speech on Jan. 6 can’t be considered part of his official presidential duties. But the matter ended up in a D.C. appeals court late last year, and judges asked the Justice Department to weigh in.
In its filing, the Justice Department avoided taking a position on whether Trump is criminally or civilly liable for the events of Jan. 6. Instead, it refuted Trump’s absolute immunity claim.
“Such a narrow decision would leave for further proceedings in the district court (and, if necessary, a future appeal) any renewed assertion of absolute immunity more narrowly focused on whether the former president’s speech actually constituted incitement,” lawyers for the Justice Department wrote.
The department referred to the 1969 ruling in Brandenburg v. Ohio, another KKK-related case that dealt with incitement of violence and deemed that speech “directed at inciting or producing imminent lawless action” or “likely to incite or produce such action” is not protected under the First Amendment. During his speech to supporters on Jan. 6, Trump implored them to “fight like hell” as he promoted baseless theories the election had been stolen from him.
“Just as denying First Amendment protection to incitement does not unduly chill speech in general, denying absolute immunity to incitement of imminent private violence should not unduly chill the President in the performance of his traditional function of speaking to the public on matters of public concern,” attorneys wrote.
It’s just the latest hurdle in Trump’s already scandal-plagued attempt to return to the White House. He faces possible indictments in a federal probe over his Jan. 6 efforts, a federal probe of classified documents stashed at Mar-a-Lago, a Manhattan probe of an alleged hush money payment to porn star Stormy Daniels during his 2016 campaign, and a Georgia grand jury probe of election interference.
Trump also faces a lawsuit from the family of Capitol Police Officer Brian Sicknick, who died after the events of Jan. 6. They have alleged Trump’s “false and incendiary” rhetoric played a role in his death.