Legal experts a recent Justice Department memo could open the door to a criminal indictment against former President Donald Trump for his role in the deadly Jan. 6 Capitol riot.
Following guidance from the District of Columbia's appellate court, the DOJ last week submitted a legal memo pertaining to a civil lawsuit filed by Capitol police officers injured on January 6, 2021, rejecting Trump's claim of presidential immunity against the complaints.
The department asserted that a president cannot be wholly absolved for a speech on a matter of public concern if the speech is found to have incited violence. Additionally, the department clarified that his inflammatory speech was not protected by his own free speech rights under the First Amendment. "No part of a president's official responsibilities includes the incitement of imminent private violence," the DOJ said in a friend-of-a-court brief.
Former prosecutor Charles Coleman Jr. called the DOJ memo a "blockbuster" that could open the door to a flurry of civil lawsuits against the former president.
"This is a big, big blow to Donald Trump and significant news. Because it opens the proverbial floodgates for lawsuits," Coleman told MSNBC. "Now, the downside to this is, while there may be a significant political strain that comes from this, and also the stain on reputation that does further damage to Donald Trump, I don't necessarily know that a victory in court is going to yield much money in terms of them being able to collect whatever judgment they will ultimately be able to get."
But beyond just potential lawsuits, legal experts say the memo could also help lay the groundwork for a criminal indictment against Trump.
"If they took the position that the president was absolutely immune, then they wouldn't be able to bring a criminal prosecution," a source familiar with the DOJ investigation told The Daily Beast.
"Had DOJ concluded that incitement unprotected by the First Amendment could nevertheless be within the president's official functions, that could conceivably have impacted criminal charging decisions related to the same speech," former federal prosecutor Mary McCord, a professor at the Georgetown University Law Center, told the outlet.
The DOJ stressed in its memo that it "expresses no view on that conclusion, or on the truth of the allegations in plaintiffs' complaints" but legal experts say the memo leaves Trump defenseless.
"If they're saying it's outside the scope of immunity of civil suits, and outside the scope of protected speech, there really isn't anything else out there protecting Trump," one unnamed attorney told The Daily Beast.
The DOJ memo could also aid Fulton County, Ga. District Attorney Fani Willis, who is leading an investigation into Trump's efforts to overturn his loss in the state. By stating that some actions by a sitting president fall outside of legal behavior, the DOJ memo could help strengthen Willis' case if she indicts Trump.
"It has profound implications for the Georgia case, and they are ominous for Trump," attorney Norm Eisen, who served as Democratic co-counsel during Trump's first impeachment, told The Daily Beast.
"Indeed, the Georgia conduct may be even more outrageous and unrelated to his official duties or his First Amendment rights than giving a speech on the Ellipse," he said. "This brief is going to be utilized by the Fulton County prosecutor because it is so powerfully indicative of the only possible logical conclusion here: that an attempted coup cannot be part of the job description of a president under the United States Constitution."
