A federal appeals court on Tuesday asked the Justice Department to weigh in on whether former President Donald Trump should be protected by absolute immunity in civil lawsuits brought against him for his alleged role in the January 6, 2021, US Capitol attack.
When the DOJ responds in mid-January, it’s set to be the first time the department must take a position on how far presidential immunity extends around the riot.
The request is the latest in several high profile disputes where the Biden Justice Department has had to consider how far the legal protections around the office of the presidency go to shield Trump.
Notably, it also comes as the Justice Department and special counsel Jack Smith are in the midst of a criminal investigation into the Trump-aligned efforts to disturb President Joe Biden’s electoral win and a day after the House select committee accused Trump of fomenting an insurrection.
In the matter before the DC US Circuit Court of Appeals, Trump’s attorneys are arguing that the speech he gave at the Ellipse before rioters breached the Capitol was protected presidential speech and thus immune to civil lawsuits.
Trump lost in his immunity arguments at a lower court and is appealing. Oral arguments were heard by the appeals court earlier this month. Tuesday, the appeals court “invited” the Justice Department to file by January 17 a so-called friend of the court brief on Trump’s appeal.
The parties in the DC Circuit case – a consolidation of three lawsuits brought against Trump brought by police officers and Democratic members of Congress – have been given a January 31 deadline to respond to the DOJ’s filing.
The case being heard by the DC Circuit is in front of a panel made up of a Clinton appointee, an Obama appointee and a Trump appointee. They’re considering the February ruling from US District Judge Amit Mehta that allowed the civil lawsuits against Trump to go forward, while dismissing the claims against some members of Trump’s inner circle who had also been named as defendants.
Mehta wrote that the “President’s actions here do not relate to his duties of faithfully executing the laws, conducting foreign affairs, commanding the armed forces, or managing the Executive Branch.”
“They entirely concern his efforts to remain in office for a second term. These are unofficial acts, so the separation-of-powers concerns that justify the President’s broad immunity are not present here,” the trial judge said.
The civil case raises major questions about the presidency, that ultimately have never been resolved definitively in federal court. If Trump were to lose in the case, attempts to keep him off ballots around the country may become more possible.
A federal criminal case would use different legal standards than any lawsuits, but could build off of the findings in the lawsuits.
“It is so interrelated at this point. It is a matter of momentum. Success in one arena would have to be success in another,” said Phil Andonian, one of the lawyers who is suing Trump on Swalwell’s behalf.
The Justice Department, including since Attorney General Merrick Garland took over, has maintained the position that Trump should not be sued personally for derogatory statements he made while president about a rape accuser that are now the subject of a defamation lawsuit. The Justice Department has also sought to limit some of the discovery being pursued by two top ex-FBI officials – both the target of extreme Trump ire related to their involvement in the Russia probe – who filed lawsuits alleging that the Trump-era DOJ broke the law in how it publicly released their texts.
In other instances, however, the Justice Department has declined to shield allies of Trump from scrutiny. The department refused to defend Rep. Mo Brooks in an earlier stage of the lawsuits now before the DC Circuit, with the DOJ disagreeing with Brooks’ argument that the speech he made at the January 6 rally was part of his official duties as a member of Congress. (Brooks was ultimately dismissed as a defendant.)
The Justice Department is also prosecuting a former Trump White House aide, Peter Navarro, for not complying with a House January 6 committee subpoena. (Navarro has pleaded not guilty to criminal contempt of Congress.)
This story has been updated with additional details.