WASHINGTON — Lawyers for former President Donald Trump are urging a federal appeals court to rule that he cannot be sued for allegedly inciting the 2021 riot at the U.S. Capitol because he has total immunity from such lawsuits.
While the House Jan. 6 committee examines his role in the assault on the Capitol and the Justice Department conducts a wide-ranging criminal investigation, the former president’s lawyers are seeking to shield him from civil lawsuits filed by Democratic members of Congress and two U.S. Capitol Police officers who said they were injured during the siege.
U.S. District Judge Amit Mehta pared back some of those claims in February but declined to dismiss all of them. Mehta ruled that Trump was not immune from civil lawsuits and that he was acting as a candidate, not performing one of the duties of his office, when he spoke at a rally before the riot.
In a legal brief filed this week, Trump's lawyers urged the U.S. Circuit Court of Appeals for the District of Columbia to find that the judge wrongly concluded that courts should look at the contents of a president’s remarks when they decide whether immunity applies. “Examining the contents of a tweet or speech constitutes an intrusion on the executive,” they said.
They relied heavily on a 1982 decision by the Supreme Court, which tossed out a lawsuit filed against former President Richard Nixon by ruling that presidents are immune from lawsuits over even actions at the “outer perimeter” of their official duties. Trump’s speech before the riot falls into that category, his lawyers said.
In questioning the results of the election during the weeks before Jan. 6 and on the day itself, Trump was exercising a president’s ability to use the bully pulpit and was “engaged in an open discussion and debate about the integrity of the 2020 election,” they said.
“The actions of the rioters do not strip President Trump of immunity,” they added.
In rejecting the same argument in February, Mehta said the rally speech was “akin to telling an excited mob that corn dealers starve the poor in front of the corn dealer’s home.” He said a later tweet attacking Vice President Mike Pence during the attack suggested a “tacit agreement” with the rioters.
Trump’s actions “do not relate to his duties of faithfully executing the laws, conducting foreign affairs, commanding the armed forces, or managing the Executive Branch,” Mehta said. “They entirely concern his efforts to remain in office for a second term. These are unofficial acts.”
House Democrats were the first to sue Trump. They said the Capitol riot was “the intended and foreseeable culmination of a carefully coordinated campaign to interfere with the legal process required to confirm the tally of votes cast in the Electoral College.”
Rep. Bennie Thompson, D-Miss., was originally the lead plaintiff, but he withdrew from the case after he became chairman of the House committee investigating the riots. Ten House Democrats remain on the suit. Two other lawsuits were filed by Rep. Eric Swalwell, D-Calif., and the two police officers. Trump also faces five other civil lawsuits based on similar claims.
Trump’s lawyers asked the appeals court to hear oral argument on their appeal. The plaintiffs have not yet responded.