The Department of Justice (DOJ) declined to back former President Trump’s position that he should be immune from civil suits seeking to hold him responsible for his conduct on Jan. 6, 2021.

The consolidated cases include legal challenges launched by numerous members of Congress who rushed for cover during the deadly riot at the Capitol as well as Capitol Police officers who allege Trump conspired to block them from carrying out their duties. The suits also seek to hold Trump liable for physical and psychological injuries.

DOJ’s stance comes as Trump has appealed a lower court ruling deeming he is not immune from the suits given that a president’s efforts to “secure or perpetuate incumbency” are not part of the White House role that otherwise prevents the president from facing civil suits for actions taken through the office.

The government in its brief draws a clear line, arguing the broad protections for the president should not cover statements inciting violence. 

“His briefs advance only a single, categorical argument: A President is always immune from any civil suits based on his ‘speech on matters of public concern’…even if that speech also constitutes incitement to imminent private violence. The United States respectfully submits that the Court should reject that categorical argument,” DOJ wrote in the filing.

The matter before the U.S. District Court of Appeals for the D.C. Circuit weighs the contours of presidential immunity from such civil suits, something DOJ argued should generally be protected.

“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,” they write.

The brief doesn’t specifically back the claims from the 11 lawmakers that Trump incited the riot, instead noting that they “plausibly allege” the former president’s speech that day motivated the attack.

The district court that previously heard the suit also rejected Trump’s First Amendment defense.

DOJ ultimately encourages the court to make a narrow ruling, calling the case a poor vehicle for determining “when and how to draw a line between the president’s official and electoral speech.”

The DOJ contribution to the case comes as it has its own criminal investigation into Trump’s effort to remain in power — something the department only briefly addresses in a footnote dismissing any connection between outside civil suits and their own probe.

“The United States does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events,” they write.

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