WASHINGTON — Donald Trump urged a federal appeals court to disregard the Justice Department’s decision to reject his claim of absolute immunity against civil lawsuits seeking to hold the former president responsible for the Jan. 6 U.S. Capitol attack.
In a brief filed Thursday, Trump’s lawyers wrote that the government’s position — that immunity couldn’t apply at this stage because he’s accused of inciting violence — was “irreconcilable” with U.S. Supreme Court precedent and would open the door to future claims against sitting presidents.
The immunity carve-out that the Justice Department had proposed for presidential speech “has no underlying principle or explanation beyond ‘we think what President Trump did was bad,’” Trump’s attorneys wrote. “This is not how the rule of law works.”
Government lawyers filed a brief earlier this month in the U.S. Court of Appeals for the D.C. Circuit saying they disagreed with Trump that he was entitled to total immunity against the lawsuits.
Allegations that Trump encouraged “imminent private violent action” wouldn’t fall within the “outer perimeter” of the duties of a sitting president, Justice Department lawyers wrote at the time.
The Justice Department did back Trump’s position that presidents are broadly entitled to strong protection against being sued over their official duties, and made clear they weren’t taking a side on the ultimate merits of the claims against him.
The latest brief from Trump’s legal team also argued that his speech to supporters on the morning of Jan. 6 — when he used phrases like “fight like hell” — was entitled to constitutional protection. The “fight” language was “metaphorical,” his lawyers wrote, noting that Trump also told his supporters to act “peacefully and patriotically.”
Thousands of people descended on the U.S. Capitol in the hours after the rally. More than 1,000 individuals have been charged in connection with the breach of the Capitol, including hundreds of felony cases for obstructing Congress and assaulting police.
Trump is facing multiple civil lawsuits in federal court accusing him of conspiring to incite violence and disrupt the certification of the 2020 presidential election results by Congress. He appealed to the D.C. Circuit after a lower court judge rejected his immunity defense against three cases filed by congressional Democrats and U.S. Capitol Police officers who responded to the violence on Jan. 6, 2021.
The U.S. government is not a party in those cases but a three-judge appeals panel invited the Justice Department to weigh in on the presidential immunity issue after hearing arguments in December. The civil suits are separate from Special Counsel Jack Smith’s criminal probe into efforts by Trump and his allies to undermine the 2020 election. Government lawyers made clear in their brief that they were not expressing “any view regarding the potential criminal liability of any person for the events of January 6, 2021.”
In a separate brief filed on Thursday, lawyers for the plaintiffs suing Trump wrote that although they agreed with the government that the incitement allegation was a valid reason to deny immunity, they urged the appeals court to adopt a broader view of the type of conduct by a president that wouldn’t be protected. An effort by a president to urge his supporters to obstruct Congress shouldn’t be entitled to immunity, they wrote, regardless of whether there was an immediate threat of violence.
“Although correct so far as it goes, the position of the United States does not go far enough,” they wrote. The brief was signed by Donald Verrilli, the U.S. solicitor general under former President Barack Obama and a new addition to the legal team representing House Democrats who sued Trump.
The D.C. Circuit hasn’t indicated when it expects to rule. The panel includes Chief Judge Sri Srinivasan, an Obama nominee; Judge Greg Katsas, a Trump nominee, and Judge Judith Rogers, confirmed under former President Bill Clinton.
