In an amicus brief filed March 2 in the U.S. Court of Appeals for the District of Columbia, the U.S. Department of Justice told the federal appeals court that former President Donald Trump should not be immune to the civil-damages lawsuits filed against him by legislators and injured Capitol police as a result of the Capitol riots on Jan. 6, 2021.
The department stated that the court should reject Trump’s argument that as president he must have “absolute immunity from damages liability predicated on his official acts,” referencing language from the 1982 Supreme Court decision in Nixon v. Fitzgerald.
A federal district court previously rejected that argument in March 2021, and found that the plaintiffs — 11 Democratic Congress members and two Capitol police officers — plausibly alleged that Trump’s speech provoked the Capitol attack, and that the speech itself “was not focused on policy or legislation.” Trump appealed the decision to the D.C. Court of Appeals, which asked the DOJ to weigh in.
“Although courts should be reluctant to conclude that a suit against the president is based on conduct that lies beyond the outer perimeter of his office, the United States agrees with the district court that a meaningful perimeter exists,” the department wrote. “Nixon v. Fitzgerald establishes a rule of absolute immunity for the President’s official acts. It is not a rule of absolute immunity for the President regardless of the nature of his acts.”
The DOJ added that it “expresses no view” on the lower court’s conclusion that Trump’s speech incited the attack on the Capitol, “or on the truth of the allegations in the plaintiffs’ complaints.”
“But 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 filing stated.
March 2, 2023 — Department of Justice Amicus Brief