Trump can be sued by those harmed in Jan. 6 attack, Justice Department says

 Donald Trump pictured from the shoulders up in front of American flags, speaking into a microphone
Rejecting claims of “absolute immunity” by former President Trump, the Justice Department says an appeals court should allow injured Capitol Police officers and Democratic lawmakers to proceed with their lawsuits against him.
(Alex Brandon / Associated Press)

Former President Trump can be sued by injured Capitol Police officers and Democratic lawmakers over the Jan. 6, 2021, insurrection at the U.S. Capitol, the Justice Department said Thursday in a federal court case testing Trump’s legal vulnerability for his speech before the riot.

In court papers, the Justice Department urged a federal appeals court in Washington to allow the lawsuits to move forward, writing that “no part of a President’s official responsibilities includes the incitement of imminent private violence.”

The Justice Department said it took no position on the lawsuits’ claims that the former president’s words incited the attack on the Capitol. Nevertheless, Justice Department lawyers said the court should reject Trump’s argument that “absolutely immunity” shields him from being sued.

“As the Nation’s leader and head of state, the President has ‘an extraordinary power to speak to his fellow citizens and on their behalf,’ the lawyers wrote. “But that traditional function is one of public communication and persuasion, not incitement of imminent private violence.”


Some Jan. 6 defendants who have expressed remorse in court for joining the pro-Trump mob that stormed the Capitol have struck a different tone later.

Feb. 3, 2023

The brief was filed by lawyers of the Justice Department’s Civil Division and has no bearing on a separate criminal investigation by a department special counsel into whether Trump can be criminally charged over efforts before the Capitol attack to undo President Biden’s victory in the 2020 election. In fact, the lawyers noted that they were not taking a position with respect to potential criminal liability for Trump or anyone else.

An email seeking comment was sent to an attorney for Trump on Thursday. Trump’s lawyers have argued that he was acting within his official rights and did not intend to spark violence when he called on thousands of supporters to “march to the Capitol” and “fight like hell” before the riot erupted.

The case is among many legal issues facing Trump as he makes another bid for the White House in 2024.

A prosecutor in Georgia has been investigating whether Trump and his allies broke the law as they tried to overturn his election defeat in the state. Trump is also under federal criminal investigation over top-secret documents found at his Florida estate.

In the separate investigation into efforts by Trump and his allies to keep the Republican in power, special counsel Jack Smith has subpoenaed former Vice President Mike Pence, who has said he will fight the subpoena.


Trump is appealing a decision by a federal judge in Washington, who last year rejected the former president’s efforts to have the lawmakers’ and police officers’ civil conspiracy lawsuits tossed out. U.S. District Judge Amit Mehta ruled that Trump’s speech during a rally before the violent storming of the U.S. Capitol was likely “words of incitement not protected by the First Amendment.”

“Only in the most extraordinary circumstances could a court not recognize that the First Amendment protects a President’s speech,” Mehta wrote in his February 2022 ruling. “But the court believes this is that case.”

The lawsuits, filed by Officers James Blassingame and Sidney Hemby and California’s Rep. Eric Swalwell (D-Dublin), and later joined by other House Democrats, argue that Trump and others made “false and incendiary allegations of fraud and theft, and in direct response to the Defendant’s express calls for violence at the rally, a violent mob attacked the U.S. Capitol.”

The suits cite a federal civil rights law that was enacted to counter the Ku Klux Klan’s intimidation of public officials, describing in detail how Trump and others spread baseless claims of election fraud and charging that they helped rile up the thousands of rioters who went on to storm the Capitol.

The lawsuits seek damages for physical and emotional injuries that the plaintiffs sustained during the insurrection.

In its filing, the Justice Department cautioned that the “court must take care not to adopt rules that would unduly chill legitimate presidential communication” or saddle a president with meritless lawsuits.


“In exercising their traditional communicative functions, Presidents routinely address controversial issues that are the subject of passionate feelings,” the department acknowledged. “Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence.”