Trump not immune from being sued for Jan. 6 riot, judges rule

Donald Trump can be held civilly liable for the actions of the mob that attacked the U.S. Capitol on Jan. 6, 2021, an appeals court ruled Friday in a long-awaited decision that could clear the way for lawsuits seeking financial damages from the former president.

The unanimous decision by a federal appeals court in Washington is expected to be appealed but could imperil Trump’s argument that presidential immunity also protects him from being charged criminally for his efforts to stay in power after the 2020 election.

“When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act,” Chief Judge Sri Srinivasan wrote for the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. “The Office of the Presidency as an institution is agnostic about who will occupy it next.”

Two U.S. Capitol police officers and about a dozen Democratic lawmakers sued Trump in 2021, saying he potentially instigated violence on Jan. 6 by telling supporters the election was stolen and urging them to march to the Capitol and “fight like hell.”

“More than two years later, it is unnerving to hear the same fabrications and dangerous rhetoric that put my life as well as the lives of my fellow officers in danger on January 6, 2021,” James Blassingame, one of the police plaintiffs, said in a statement. “I hope our case will assist with helping put our democracy back on the right track; making it crystal clear that no person, regardless of title or position of stature, is above the rule of law.”

The plaintiffs sued under a roughly 150-year-old law that bars the use of force, threats or intimidation to prevent government officials from carrying out their duties and allows anyone injured by such actions to collect damages. They argued that Trump violated the statute – designed to combat Ku Klux Klan violence after the Civil War – by conspiring with members of far-right groups to keep lawmakers from confirming Joe Biden’s election win.

Special counsel Jack Smith also accused Trump of violating a law written to target the Klan, along with other federal crimes.

Trump and his lawyers have argued that he is protected from both the lawsuit and the criminal charges brought by Smith because of the absolute immunity conferred on a president for anything done as part of his official duties. Under U.S. Supreme Court precedent, presidents can be held liable only for personal actions that fall beyond “the outer perimeter” of their responsibilities. The question for the appellate court was whether claiming the election was stolen and telling his supporters to go to the Capitol crossed that line.

The appellate court made it clear that this was only a preliminary ruling and that Trump could still persuade a judge that presidential immunity applies to any particular action or statement by him. But he is not preemptively protected from having to defend himself in the suit, as he argued he should be.

Trump campaign spokesman Steven Cheung called the decision “limited, narrow, and procedural,” adding that “the facts fully show that on January 6 President Trump was acting on behalf of the American people, carrying out his duties as President of the United States.”

At a hearing nearly a year ago, the judges argued about how to distinguish between protected presidential speechmaking and unprotected personal agitating. One judge, a Trump appointee who served in his administration, said during the December 2022 hearing that Trump’s case was complicated because the former president was plausibly accused of instigating violence in his message to supporters.

The “arguable incitement,” Judge Gregory G. Katsas said, “makes this a hard case.”

But in the end, the judges drew the line differently, saying what mattered was not the violence of the rhetoric but the fact that Trump had offered no evidence that his speechifying before and on Jan. 6 were about anything other than his own desire for reelection.

“Trump … has made no argument as to why his actions alleged here should be treated more like the State of the Union than (a) campaign ad,” Srinivasan, an Obama appointee wrote.

Despite agreeing on the decision, all three judges wrote separately – underscoring the unprecedented and complicated questions involved. Katsas joined Srinivasan’s opinion in full, adding that “when the President speaks at campaign events … he normally does so in a private capacity,” although he “may occasionally render official speech even during a typical campaign event.” For example, he said, a president could announce he is replacing a member of the Cabinet during a campaign speech.

The decision will also impact another case in which an additional eight Capitol Police officers are suing Trump over the injuries they suffered during the riot. But Trump is likely to ask the entire D.C. Circuit to hear the case, and then the U.S. Supreme Court.

Trump’s defense had argued that his statements at the Jan. 6 rally and any other related tweets and public statements fell “dead-center” within his constitutional duty to ensure that the nation’s election laws were faithfully executed and within a president’s use of the bully pulpit to speak to the American people “freely and frankly on matters of public concern.”

Trump attorney Jesse Binnall said at oral argument that it didn’t matter that Trump’s purpose was political. “You cannot separate the governance from reelection,” he said. “If the president wants reelection, it’s so he can continue to govern.”

The appeals court rejected that argument but also did rebuffed a suggestion by the plaintiffs that Trump’s conduct was unprotected because he was trying to interfere with a congressional process, violating the separation of powers between branches of government. Two of the three judges agreed that the presidential immunity did not apply only to the powers given to the president in the Constitution.

“Decades if not centuries of tradition establish that the President may use the soft power of his office – the bully pulpit – to urge action by Congress, the judiciary, the states, or private parties on matters of public concern,” Srinivasan wrote.

Judge Judith W. Rogers, a Clinton appointee, did not join that part of the opinion, saying it was “premature” and unnecessary.”

The case was brought in part by Protect Democracy, a nonprofit that includes several Justice Department veterans.

“We’re moving one step closer to justice, one step closer to accountability, and one step closer to healing some of the wounds suffered,” counsel Kristy Parker said in a statement.

The question of whether such immunity applies to Trump’s federal criminal case in D.C. still needs to be weighed by U.S. District Court Judge Tanya S. Chutkan. That decision is also certain to be appealed. It’s a novel issue, because a former president has never before been charged with a crime.

Trump’s attorneys argued that the civil standard be applied in his criminal case, and that “Trump’s efforts to ensure election integrity, and to advocate for the same” were “at the heart of his official responsibilities as President.”

Having the D.C. Circuit reject Trump’s civil immunity claim “cuts the legs out from under Trump’s” argument, said Randall Eliason, a former federal prosecutor who teaches at George Washington University law school. “This should make it easy for Judge Chutkan to quickly deny that motion, and hopefully also make it easy for the D.C. Circuit to quickly affirm that denial so the trial date is not delayed.”

The panel took 20 months to decide the case, and it is unclear how long further appeals might take. The Supreme Court could swiftly decide not to accept a potential appeal, letting Friday’s decision stand. If it accepts briefings, the typical process would extend months to over a year.

Smith’s office argues that former presidents may not have any criminal immunity at all, comparing them to other public officials who enjoy protection from lawsuits but are “subject to criminal prosecutions as are other citizens.”

A lower-court judge, Amit P. Mehta, rejected Trump’s claim of immunity in February 2022. The president has “no role” in the “Certification of the Electoral College vote,” he said and “false claims of election fraud and theft” is “not speech in furtherance of any official duty.”