Lawsuit Against Trump Over Capitol Attack Should Proceed, Justice Dept. Says

WASHINGTON — The Justice Department told a federal court that it should allow a lawsuit to proceed against former President Donald J. Trump by members of Congress and Capitol Police officers over the attack by his supporters on Jan. 6, 2021, after he delivered a fiery speech falsely claiming that the 2020 election had been stolen from him.

In a 23-page brief, lawyers for the Justice Department’s civil division told the U.S. Court of Appeals for the District of Columbia Circuit that if Mr. Trump’s speech to his supporters at a nearby rally had incited the riot, then he was not shielded by immunity.

While the Justice Department traditionally takes a broad view of executive power and defending the prerogatives of the presidency, its brief — submitted in response to the appeals court’s request late last year — said inciting violence was not within a president’s constitutional duties.

“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,” the brief said. “But that traditional function is one of public communication. It does not include incitement of imminent private violence of the sort the district court found that plaintiffs’ complaints have plausibly alleged here.”

The Supreme Court has held that the Constitution gives presidents immunity from being sued over their official actions. The lawsuits against Mr. Trump say that his speech incited the Capitol attack, raising the question of whether speaking to his supporters about the 2020 election results fell within his official job responsibilities.

A Federal District Court judge ruled last year that the lawsuits against the former president could proceed, and he appealed. Mr. Trump’s lawyers have argued that presidents are always immune from any civil suits based on “speech on matters of public concern.”

In rejecting that view as going too far, the Justice Department brief — submitted by Bryan M. Boyton, the principal deputy assistant attorney general for the department’s civil division, and several other civil appellate lawyers — stopped short of endorsing the conclusion that Mr. Trump’s speech instigated the attack.

“The United States here expresses no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s Jan. 6 speech incited the subsequent attack on the Capitol,” the brief said. “But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this court should reject the categorical argument President Trump pressed below and renews on appeal.”

The combined lawsuits against Mr. Trump over the Jan. 6 attack were brought by various Democratic members of Congress, along with Capitol Police officers.

The lawsuit is not the only pending case that tests the limits of whether Mr. Trump was acting in his capacity as president. A separate court for the District of Columbia is currently weighing whether, as a matter of employment law, he was acting within his official capacity when he spoke disparagingly of a writer who accused him of raping her in the 1990s and is suing him for defamation.

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