WASHINGTON — Former President Donald Trump isn’t currently entitled to absolute immunity against civil lawsuits seeking to hold him responsible for the violence at the US Capitol during the Jan. 6 attack, a federal appeals court ruled.
The U.S. Court of Appeals for the D.C. Circuit on Friday rejected Trump’s argument that because he was president at the time, he was shielded from suits over his actions leading up to the Jan. 6, 2021, riot and his comments to a rally of supporters that morning. The majority said Trump could try to claim immunity again later in the case, but not at this early stage.
The ruling is a significant setback for Trump as he fights criminal charges that he conspired to overturn the 2020 election results. His defense team is arguing that he’s also entitled to executive immunity against the prosecution, teeing up a similar fight over whether the post-election activities in the indictment fell under the umbrella of his official duties as president.
D.C. Circuit Chief Judge Sri Srinivasan wrote for the three-judge panel on Friday that Trump wouldn’t be entitled to immunity against the civil suits if he were acting as a candidate for reelection during the events at issue. The court rebuffed his contention that anytime a sitting president spoke on matters of public concern, that qualified as an official act.
But the court said that as the case moved forward, it was possible that Trump could present evidence to show that the specific post-election activities laid out in the lawsuits were “official actions,” leaving the door open for him to revive the immunity fight.
A Trump spokesman didn’t immediately respond to a request for comment.
Trump’s lawyers can now petition for reconsideration of the ruling by the full D.C. Circuit court or ask the U.S. Supreme Court to intervene. Meanwhile, he’s expected to continue to fight the civil cases brought by police officers and Democratic members of Congress if they move to trial.
Trump was indicted on election interference charges in August by Special Counsel John “Jack” Smith’s office. The former president isn’t directly accused of inciting the Jan. 6 attack or sedition, but prosecutors did lay blame at his feet. The indictment features some of the same events as in the civil cases, alleging he promoted false election fraud claims to supporters and directed them to the Capitol to try to obstruct Congress’s certification of the election. Trump has pleaded not guilty.
In a February 2022 decision rebuffing the immunity claim, U.S. District Judge Amit Mehta found that Trump’s post-election actions and speech were all part of an effort to stay in power, which wasn’t a presidential function. This included Trump’s actions to contest and complain about the results in battleground states, urging state and federal lawmakers to intervene, and organizing and speaking at the Jan. 6 rally before the Capitol attack.
Earlier this year, the Justice Department filed a brief in the appeal saying the US government’s position was that an allegation of inciting “imminent private violence” wouldn’t fall under the duties of the president, so Trump wouldn’t be entitled to immunity at this stage.
The department’s attorneys made clear that they weren’t expressing any view about “potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events.”
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