Former President Donald Trump filed a brief July 27 in his appeal from an order rejecting his defense that he has absolute immunity from claims arising out of his conduct on Jan. 6 leading to the insurrection at the Capitol.
The order was made in three consolidated cases seeking money damages against Trump, but if it is reversed, it will spell the end of all pending civil claims against him for his part in allegedly fomenting the rioters. His defense is quite simple, but also wrong as a matter of fact and law.
According to his lawyers, all Trump was doing on Jan. 6 was engaging “in open discussion and debate about the integrity of the 2020 election” and “commenting on the results of an election that he believes violated the Constitution and state laws.”
Of course, we knew when his second impeachment trial took place—and it can no longer be the subject of serious debate after the House Select Committee hearings—that he did far more, and that he also failed to do what a president was obliged to do, that is, calling off the rioters immediately.
On the merits of Trump’s defense, participating in an insurrection of the kind forbidden by the Fourteenth Amendment is surely not within the outer perimeter of the duties of any president, as the plaintiffs will surely argue.
But right now, there is an elephant that should be in the room but is not.
The federal government is not a party to these cases, but it surely can—and indeed must—file a brief saying in no uncertain terms that, while a president has absolute immunity whenever he engages in debates about election integrity or comments on the outcome of any election, that immunity does not extend to the full scope of what Trump did on Jan. 6, and does not prevent him from being held accountable for the injuries he caused.
Why the DOJ Should File a Brief
The courts expect the Justice Department to be heard when issues relating to the powers and immunities of the president are an issue, and if the department does not file a brief on its own, the D.C. Circuit in this case should invite it to do so.
Aside from assuring that the court gets the law of immunity right in these cases, the department must assure that the interests of the US—in both civil and criminal cases—are not damaged by an adverse ruling on this immunity claim. Although the DOJ is very tight-lipped about what it is doing, we know that there is a major investigation going on that surely extends to Trump personally and his role on Jan. 6.
There are at least three possible lawsuits that the DOJ could bring, all of which might be placed in jeopardy if the immunity claim is upheld, even if a court concluded that Trump’s conduct that day otherwise makes him responsible for the harms that the insurrection produced.
Lawsuits the DOJ Could Bring
First, the rioters caused millions of dollars in damages to the Capitol, and they forced the government to bring in and pay for troops to protect against violence at the inauguration and thereafter. Those costs should be the basis of a civil suit by the US to recover those costs from the former president. But if Trump’s immunity claim is correct, that claim might well fail, as would the similar claim of the District of Columbia for its losses that are not part of this appeal.
Second, aside from the damages claim, the US, as well as candidates of both political parties, may have 14th Amendment claims that Trump is ineligible to be president because of his participation in the insurrection. Yet if he is immune from private civil suits such as these, he would surely demand that such a disqualification suit suffers from the same limitation.
Last, and perhaps even too outlandish for the former president, he will claim that his absolute immunity will shield him from criminal prosecution if the DOJ decides to indict him.
Of course, no matter what happens in these private civil damages cases, there are arguments that would prevent any favorable immunity argument from being applied in these other cases, but the DOJ should not count on winning them.
The way to stave off all these defenses is for the DOJ to file a brief in the pending appeal, making clear its position that the former president has no immunity for what he did on Jan. 6, and that he must stand trial on the merits.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Alan B. Morrison is an associate dean at George Washington University Law School where he teaches civil procedure and constitutional law.