Government lawyers agreed with Trump that presidents are entitled to robust protections against being sued over their official duties. But in a newly filed court brief, they disagreed that the allegations in the Jan. 6 cases against the former president — that he incited imminent violence — would entitle him to that immunity at this stage of the litigation, while also making clear they weren’t taking a position on whether the underlying claims were valid.
“In the United States’ view, such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States,” the Justice Department lawyers wrote.
Trump has argued that he cannot be sued at all over statements leading up to the assault because speaking on matters of public concern fell within the “outer perimeter” of his presidential duties.
The position risks legal complications and political blowback. The government has been pulled into litigation over Trump’s role in Jan. 6 while a federal criminal investigation is underway. The department historically embraced a broad interpretation of the constitutional separation of powers that protects a current or former president from being sued over official acts, so taking a stance against Trump risks allegations of political bias.
A federal district judge previously rejected Trump’s immunity defense against a trio of lawsuits filed by congressional Democrats and U.S. Capitol Police officers who responded to the violence at the Capitol. Trump’s lawyers have urged the U.S. Court of Appeals for the D.C. Circuit to reverse that ruling and dismiss the claims against him.
The Justice Department’s break with Trump is likely to be popular with Democrats and Trump critics. The department had faced criticism from the left early in the Biden administration when it backed Trump’s position that a federal law that protects government employees against being sued over official duties shielded him against a defamation lawsuit; that case is pending.
The U.S. isn’t a party in the Jan. 6 civil cases and hadn’t asked to get involved — the D.C. Circuit had invited the government to share its view in a friend-of-court brief after a three-judge panel heard arguments in December. In a sign of the legal complexities and political sensitivities at stake, the department had asked for two deadline extensions before filing its brief.
The Justice Department’s position on the immunity question doesn’t guarantee that Trump will lose, but it’s a significant setback to his case. Lawyers for Trump and for the plaintiffs have until March 16 to file a response.
Trump’s position is that the U.S. Supreme Court has been clear that immunity applies to any conduct that falls within the “outer perimeter” of a president’s official duties, pointing to a 1982 decision, Nixon vs. Fitzgerald. His lawyers argue that judges shouldn’t engage in “content-based analysis” and probe the “political context” of a president’s public discourse.
During the Dec. 7 hearing before the DC Circuit, Trump attorney Jesse Binnall argued that the immunity might not apply to actions by a president that were “purely personal,” but that any remarks on the “bully pulpit” would be covered. Responding to a series of hypothetical scenarios posed by the judges, Binnall said Trump couldn’t be sued even if he explicitly urged his supporters to “burn Congress down.”
The plaintiffs have countered that the allegations in their lawsuits – that Trump conspired to incite violence and disrupt Congress’ certification of the election results and the peaceful transfer of power – could not be considered part of his duties as president. This type of immunity doesn’t apply to everything a president says while in office, they argued.