Donald Trump can be sued if his speech incited a mob to violence Jan. 6, Justice Department argues

WASHINGTON – Incitement of a mob to commit violence goes beyond absolute immunity that covers presidential communication and could allow for a lawsuit for injuries, the Justice Department said Thursday.

Two officers with the U.S. Capitol Police and 11 Democratic House members want to sue former President Donald Trump for physical and psychological injuries they claim they suffered during the riot.

Trump argues he is protected from the lawsuit by the absolute immunity conferred on a president performing his official duties. But in a court filing, reported by The Washington Post, the Justice Department said Trump could be held liable for the actions of the mob that overtook the U.S. Capitol on Jan. 6, 2021.

“Speaking to the public on matters of public concern is a traditional function of the Presidency, and the outer perimeter of the President’s Office includes a vast realm of such speech,” attorneys for the Justice Department’s Civil Division wrote in a court filing reported by The Washington Post. “But that traditional function is one of public communication. It does not include incitement of imminent private violence.”

The plaintiffs in the suit cited a statute written after the Civil War in response to the Ku Klux Klan that allows damages to be awarded when force, threats or intimidation are used to prevent government officials from carrying out their duties.

An appeals court in December asked the Justice Department to offer an opinion after it debated whether Trump was doing his job when he drew thousands of supporters to Washington for a rally. At that rally, he repeated falsehoods and told them they had to “fight like hell” to keep Congress from certifying the results of the 2020 election.

The response took many months to craft — twice, the Justice Department asked for another month. And in the filing, the Justice Department emphasized that it was not saying the allegation that Trump incited the Jan. 6 riot is true — only that the “plausibly allege[d]” claims describe conduct outside the scope of a president’s official duties, The Post said.

“Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence,” the Justice Department attorneys said, referencing a concern raised at oral argument. They suggested looking to another Klan-inspired court case — the 1969 ruling that speech “directed at inciting or producing imminent lawless action” or “likely to incite or produce such action” is not protected by the First Amendment.

“Just as denying First Amendment protection to incitement does not unduly chill speech in general, denying absolute immunity to incitement of imminent private violence should not unduly chill the President in the performance of his traditional function of speaking to the public on matters of public concern,” the attorneys wrote.

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