The Department of Justice has provided an anticipated opinion amid a dispute about whether to allow litigation against Trump over his incitement of the Capitol riot to move forward — and the department has concluded in favor of such litigation, finding that the substance of what Trump is alleged to have done in inciting the Capitol attack would fall outside normal protections offered to a president if proven.
“Speaking to the public on matters of public concern is a traditional function of the Presidency, and the outer perimeter of the President’s Office includes a vast realm of such speech,” attorneys in the Civil Division at the Justice Department said, in a portion highlighted by The Washington Post. “But that traditional function is one of public communication. It does not include incitement of imminent private violence.” The filing also rejected the idea, which is roughly equivalent to some of what’s come out of Trump’s corner, that allowing such a challenge to a former president’s conduct would essentially chill, either through intimidation or real-world court action, other behavior or commentary by a commander-in-chief.
“Just as denying First Amendment protection to incitement does not unduly chill speech in general, denying absolute immunity to incitement of imminent private violence should not unduly chill the President in the performance of his traditional function of speaking to the public on matters of public concern,” the department said. This response, which was an opinion sought by an appeals court, came amid litigation with local police officers and nearly a dozen Democratic members of Congress attached. Others, like the longtime romantic partner of the late Capitol Police officer Brian Sicknick, have also sued Trump in connection to what happened at the Capitol, and this decision from the Justice Department to support the litigation moving forward could suggest at least a path to trial for some of those cases.
At the district court level in this ongoing court dispute, Trump already lost in his bid to shield himself with a claim of absolute immunity for taking certain, contested actions while president.
None of these cases would result in criminal consequences for Trump, although such are also possible in contexts like the investigation in Georgia into election meddling done on his behalf after the last presidential race. A prior claim from Trump of total exoneration based on portions of a report from a special grand jury working on that case was ridiculous, considering most of the report wasn’t even made available as the underlying investigation continues.
