JUST IN: DOJ Torpedoes Trump Immunity Claim In Court — No Pass For ‘Incitement Of Imminent Private Violence’

Jacquelyn Martin, AP Photo

The Department of Justice torpedoed former President Donald Trump’s claim of immunity in a court filing that notes there’s no presidential immunity for “the incitement of imminent private violence.”

On Thursday, the DOJ filed a brief to the United States Court of Appeals for the District of Columbia Circuit that took on Trump’s claim of “absolute immunity” from civil damages in lawsuits related to the deadly attack on the Capitol that Trump incited on January 6, 2021.

From the filing:

No part of a President’s official responsibilities includes the incitement of imminent private violence. By definition, such conduct plainly falls outside the President’s constitutional and statutory duties. Cf. Nixon, 457 U.S. at 749-50.

It likewise falls outside any plausible understanding of the President’s traditional function of speaking to the public on matters of public concern. 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.” Hawaii, 138 S. Ct. at 2417-18.

But that traditional function is one of public communication and persuasion, not incitement of imminent private violence. To extend immunity to such incitement would contradict the “constitutional heritage and structure,” Nixon, 457 U.S. at 748, that have informed and justified the doctrine of presidential immunity.

CNN notes the brief will influence a key decision about whether to allow cases against Trump to go forward:

The January 6 civil cases are currently at a phase where courts are weighing questions about the legal strength of the claims against Trump, and those courts are not yet considering the factual merits of the allegations against the former president. A district court judge previously denied a Trump motion to dismiss the case, finding that the former president was not absolutely immune from the civil January 6 lawsuit.

The DC Circuit is now considering a Trump request to reverse that ruling. After hearing arguments on the matter last year, the appeals court invited the Justice Department to weigh in.

Trump’s claim is based on a Supreme Court precedent that presidents enjoy “absolute immunity from damages liability predicated on his official acts.”