Police can sue Trump over Jan. 6 riot, DOJ says

Former president Donald Trump can be held liable in court for the actions of the mob that overtook the U.S. Capitol on Jan. 6, 2021, the Justice Department said Thursday.

“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. “But that traditional function is one of public communication. It does not include incitement of imminent private violence.”

Two officers with the U.S. Capitol Police, joined by 11 Democratic House members, are seeking to hold Trump liable for physical and psychological injuries they suffered during the riot. Trump has argued he is protected from the lawsuit by the absolute immunity conferred on a president performing his official duties.

The lawsuit was filed under a statute, written after the Civil War in response to the Ku Klux Klan, that allows for damages when force, threats or intimidation are used to prevent government officials from carrying out their duties.

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

The response took many months to craft twice, the Justice Department asked for another month.

Now it has responded. “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.

The district court that first heard this suit already ruled that the First Amendment does not protect Trump's conduct.