Donald Trump revives push for immunity against US Capitol attack lawsuits

By Zoe Tillman

 

President Donald Trump is renewing his push to end civil lawsuits seeking to hold him liable for the violence and disruption of Congress during the Jan. 6, 2021, attack on the US Capitol. 

Trump’s personal lawyers filed a brief on Friday evening arguing that he should be immune from civil claims because he was acting in his official capacity as president as he tried to overturn his 2020 election loss. The filing focused on his speech to supporters in Washington shortly before a mob descended on the Capitol complex and also touched on his social media posts and efforts to persuade swing state officials to intervene on his behalf.

 

The latest court filing revives a legal fight that had been largely dormant for more than a year. While the US Justice Department dropped the federal criminal cases against Trump citing longstanding policy against prosecuting sitting presidents, the US Supreme Court has held that officeholders can still be forced to reckon with civil lawsuits as long as they involve private conduct. 

 

More than a year ago, a federal appeals court in Washington rejected Trump’s bid for early, absolute presidential immunity against the lawsuits. But the judicial panel also said that he could gather evidence and try to prove that he was, in fact, performing presidential functions at the time and make another bid to get the cases tossed out.

 

Trump’s lawyers and attorneys for the law enforcement officers and Democratic members of Congress who brought the cases spent the past year collecting documents and testimony. The plaintiffs are due to respond to Trump’s immunity bid by Feb. 28. 

 

Trump’s lawyers argued in the latest brief that he only had to clear a “low bar” of showing that his actions after the 2020 election could be “reasonably” understood as official conduct. 

 

Trump “is entitled to immunity even if just one reasonable understanding among many possible understandings of his actions is that they were an exercise of presidential authority,” his lawyers wrote.

 

They argued that because members of Congress were among the intended audience for Trump’s Jan. 6 speech at the Ellipse, where he promoted false claims of widespread election fraud and urged his supporters to “fight like hell” and march to the Capitol, it was similar to a state of the union address. 

 

Trump’s lawyers said they had evidence that White House staff treated the Jan. 6 speech as official business, such as the fact that a draft version circulated by the White House staff secretary on Jan. 5 didn’t feature an ethics warning that would normally accompany campaign material.

 

They argued there was evidence that he had used his social media accounts to conduct official business, so his posts about the election would full under that category. 

 

Although there wasn’t evidence that other government agencies were part of Trump’s outreach to swing state officials, his lawyers argued that wasn’t necessary, citing the Supreme Court’s ruling over the summer that laid a new, broader framework for immunizing presidents from criminal charges over official conduct. 

 

The majority of justices wrote at the time that the president “may speak on” the “fairness” of elections to state officials, “even when no specific federal responsibility requires his communication.”

 

Trump is appealing his conviction on state charges that he falsified business records in connection with hush money payments. His lawyers unsuccessfully tried to stop a judge from sentencing him ahead of his swearing-in, pointing to the Supreme Court’s immunity decision.

 

Trump is also seeking to get state charges tossed in Fulton County, Georgia, accusing him of leading a criminal conspiracy to interfere with the 2020 election results, though that case is in limbo after an appeals court disqualified the district attorney and her office.