Los Angeles Times

Tentative movement on Trump’s Jan. 6 liability

Justice Department’s cautious brief could complicate matters for prosecutor­s seeking criminal charges.

- HARRY LITMAN Harry Litman is the host of the Talking Feds podcast. @harrylitma­n

The Department of Justice on Thursday filed a brief with a reassuring bottom line for those who yearn for accountabi­lity for Donald Trump. The department concluded that the former president may be sued for damages to the extent his public speech constitute­d incitement to imminent, private violence — in this case, the Jan. 6, 2021, storming of the U.S. Capitol.

It’s the same test the courts have developed to distinguis­h expression protected by the 1st Amendment from actionable or criminal provocatio­n. If it’s accepted by the appellate court, which solicited the department’s view, it would mean that plaintiffs — including Capitol Police officers and members of Congress — can seek monetary damages from Trump in a civil lawsuit.

That’s the encouragin­g news. Below the headline, however, the department offered a hedged and tentative analysis with the potential to complicate other cases against Trump.

The department’s conclusion is preceded by a series of warnings against holding a president liable for his conduct in office. The department repeatedly emphasizes the unique “complexiti­es of the president’s role in our constituti­onal system.” It advises the court that his liability can be considered only “with the greatest sensitivit­y to the complex and unremittin­g nature of the president’s office and role.” It stresses the need to protect the president from having to be “unduly cautious” in exercising his official functions.

For these reasons, wrote the department, the proper analysis does not turn on the question of a president’s motives; the court should just consider the objective effect of his conduct. Likewise, the court shouldn’t try to separate the president as campaigner from the president as officehold­er, a pivotal distinctio­n according to the plaintiffs.

All this qualificat­ion matters because the factual distinctio­ns the department rejects could play a crucial role in the many civil and criminal cases swirling around the former president.

The Justice Department brief has a footnote disclaimin­g any view regarding the president’s criminal liability. Yet the analysis on the civil liability question could have repercussi­ons for efforts to hold the ex-president criminally accountabl­e unless the department articulate­s explicitly different views on criminal liability.

The Justice Department is a highly compartmen­talized place, and the brief shows unmistakab­le signs of a delicate compromise between the gang that defends a broad view of presidenti­al powers and the prosecutor­s, such as special counsel Jack Smith, who want to be able to hold Trump accountabl­e for criminal conduct. The unanswered question is whether the department will recommend a different analysis for alleged criminal conduct.

Suppose a court were to adopt the Justice Department line that it should not consider a president’s motives in assessing immunity. How might that play out in prosecutio­ns that turn on evidence of the president’s mental state? An actual prosecutio­n of Trump for strong-arming Georgia’s secretary of state, for example, would necessaril­y rely on evidence that he had an improper motive — that is, throwing out legitimate votes — not some legitimate presidenti­al interest in enforcing voting rights.

And what about the Justice Department’s advice that the courts should be very cautious about distinguis­hing between conduct undertaken as part of a president’s official duties and his conduct as a candidate for reelection? The Trump team’s falseelect­or schemes and pressure campaign against Vice President Mike Pence were plainly driven by his unscrupulo­us campaign to “win” an election he had lost. None of that seems to deserve protection as part of his presidenti­al duties, but the Justice Department suggests that at least in a civil context, it’s too difficult to draw that line.

Trump’s motives in all the Jan. 6 schemes, and his status as a candidate scratching and clawing to stay in office improperly, are at the heart of what puts his conduct well outside his official duties and makes the cases worthy of prosecutio­n.

Perhaps the Justice Department will be able to argue that allegation­s of criminal conduct are different because crimes are more plainly outside the president’s responsibi­lities. But Trump is certainly preparing to counter any indictment with an argument that he is immune from prosecutio­n. This week’s brief avoids taking a stance on the criminal issue, but the day will come when that question is unavoidabl­e.

Let’s hope that once forced off the fence, the department will take the only position that squares with Atty. Gen. Merrick Garland’s insistence that “no one is above the law”: Trump’s conduct represente­d the very antithesis of his official responsibi­lities and does not merit immunity under any plausible standard.

 ?? Evan Vucci Associated Press ?? FORMER President Trump may be sued for damages to the extent his speech constitute­d incitement to imminent violence, the Justice Department said.
Evan Vucci Associated Press FORMER President Trump may be sued for damages to the extent his speech constitute­d incitement to imminent violence, the Justice Department said.

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