Former U.S. President Donald Trump can be held liable if a court rules in favour of a lawsuit filed in connection to the Jan. 6, 2021, attack on the U.S. Capitol, the U.S. Justice Department said Thursday.
The department’s opinion was filed in response to a civil suit launched by two U.S. Capitol police officers and 11 Democratic members of Congress that alleges Trump was responsible for inciting the riot that day, and therefore should be held liable for physical and psychological injuries they suffered.
The case, which is still in the preliminary stages, was held up after a U.S. federal appeals court asked the Justice Department for an opinion on whether Trump’s speech to thousands of supporters that day — in which he falsely claimed the 2020 election was stolen from him and urged the crowd to “fight like hell” — fell under his responsibilities as president.
“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 department’s Civil Division wrote in Thursday’s filing.
“But that traditional function is one of public communication. It does not include incitement of imminent private violence.”
The brief emphasizes that the Justice Department does not hold an opinion on whether the allegations in the lawsuit are true. Rather, it simply says the description of Trump’s behaviour “plainly falls outside the President’s constitutional and statutory duties.”
The lawsuit was filed under a post-Civil War statute that says damages may be awarded to plaintiffs who claim force or intimidation prevented government officials from performing their official duties. The statute was originally written in response to violent white-supremacist attacks carried out by the Ku Klux Klan.
The lawsuits argues Trump and others — including his son Donald Trump Jr. and lawyer Rudy Giuliani — 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.”
Trump and his lawyers have argued his remarks that day fell within his duties as president to inform the public and that he is protected by the First Amendment right to free speech.
Yet the Justice Department’s filing cites a separate Klan-related court case from 1969, specifically the ruling that says speech either aimed at or likely to incite violence is not protected by the First Amendment.
A federal judge in Washington last year rejected efforts by Trump to toss out the lawsuit, saying in his ruling that the former president’s words “plausibly” led to the riot on Jan. 6 and were not protected speech.
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Oral arguments were held in the U.S. Court of Appeals in Washington in December. Unable to reach a decision, the justices asked the Justice Department to weigh in.
Thursday’s filing came after the department twice asked for month-long extensions.
The opinion has no weight on any of the other lawsuits filed against Trump in connection to Jan. 6 — including one from the family of Brian Sicknick, the U.S. Capitol Police officer who suffered injuries while engaging the rioters and died of a stroke coroners attribute to natural causes the following day.
It also does not impact the special counsel investigation underway at the Justice Department, which is mulling a potential criminal prosecution for Trump’s role in the attack.
Last year, the select House committee that investigated the riot recommended four criminal charges be laid against Trump, including incitement of an insurrection. The committee’s final report argued Trump was responsible for the violence that day due to months of spreading falsehoods about the election and attempting to pressure state and federal officials to overturn the results.
Members of the far-right groups Oath Keepers and Proud Boys — who are also named in the lawsuit — have been charged with seditious conspiracy for their roles in the attack.
Several Oath Keepers members, including founder Stewart Rhodes, were found guilty last year. The trial for Proud Boys leader Enrique Tarrio and other leadership members is ongoing.
— with files from the Associated Press
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