Trump claims he has “absolute immunity” from Jan. 6 lawsuits in new court filing

Trump tries to dodge civil suits accusing him of inciting riot after a judge already rejected his earlier claims

By Igor Derysh

Managing Editor

Published July 28, 2022 9:19AM (EDT)

Former U.S. President Donald Trump speaks to the Faith & Freedom Coalition June 17, 2022 in Nashville, Tennessee. (Seth Herald/Getty Images)
Former U.S. President Donald Trump speaks to the Faith & Freedom Coalition June 17, 2022 in Nashville, Tennessee. (Seth Herald/Getty Images)

Former President Donald Trump's lawyers asked a court on Wednesday to rule that he has "absolute immunity" from lawsuits related to the deadly Jan. 6 Capitol riot.

Trump is appealing a February ruling by U.S. District Judge Amit Mehta that the former president can be sued for damages stemming from the Jan. 6 attack, rejecting Trump's claim of immunity because his actions that day were "plausibly words of incitement not protected by the First Amendment" or presidential immunity.

Trump's lawyers on Wednesday asked the D.C. Circuit Court of Appeals to reverse the ruling, again arguing that Trump has "absolutely presidential immunity."

"President Trump is shielded by absolute presidential immunity because his statements were on matters of public concern and therefore well within the scope of the robust absolute immunity afforded all presidents," his lawyers said in a filing first flagged by Politico's Josh Gerstein.

"No amount of hyperbole about the violence of January 6, 2021, provides a basis for this Court to carve out an exception to the constitutional separation of powers," the brief added.

Trump faces civil lawsuits from Rep. Eric Swalwell, D-Calif., two Capitol Police officers and a group of House Democrats accusing him of inciting the insurrection.

Trump's attorneys argued that impeachment is the only means to punish a president for his actions. The House impeached Trump for a second time after the riot but the Senate fell short of the threshold necessary for conviction in a 57-43 vote. The filing described the lawsuits following his impeachment as "harassment."

"A Democratic-controlled House of Representatives already brought impeachment charges against President Trump for allegedly inciting an insurrection on January 6, 2021. Their effort failed, and President Trump was acquitted. These further lawsuits are an attempt to thwart that acquittal, and it is just this type of harassment that presidential immunity is meant to foreclose," the brief says.

Mehta in his ruling determined that Trump's false claims about a "stolen" election were not immune on separation of powers grounds.

"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," he wrote. "They entirely concern his efforts to remain in office for a second term. These are unofficial acts."

Trump went beyond pressuring election officials and Congress to overturn his election loss, noting that his statements ahead of the riot were "an implicit call for imminent violence or lawlessness."

"He called for thousands 'to fight like hell' immediately before directing an unpermitted march to the Capitol, where the targets of their ire were at work, knowing that militia groups and others among the crowd were prone to violence," Mehta wrote, adding that Trump's role "was to encourage the use of force, intimidation or threat to thwart the Certification from proceeding, and organized groups such as the Proud Boys and the Oath Keepers would carry out the required acts."

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The filing came as Trump also faces a Department of Justice investigation into his role in the Capitol riot. Prosecutors questioning witnesses before a grand jury have asked about conversations witnesses had with Trump, his lawyers and his inner circle in the lead-up to the riot, The Washington Post reported on Tuesday. Prosecutors have asked "hours of detailed questions" about Trump's meetings around that time, his efforts to pressure former Vice President Mike Pence to overturn the election and Trump's potential role in the fake elector scheme. Attorney General Merrick Garland vowed on Wednesday to hold "all January 6th perpetrators, at any level, accountable under law."

Fulton County, Ga., District Attorney Fani Willis is also leading a criminal investigation into Trump's efforts to overturn his election in the state, including his demand that Secretary of State Brad Raffensperger "find" enough votes to reverse his loss.

Trump has told associates that he believes running for president in 2024 will grant him immunity in his legal battles, according to a Rolling Stone report earlier this month.

Trump has "spoken about how when you are the president of the United States, it is tough for politically motivated prosecutors to 'get to you," a source who discussed the matter with Trump told the outlet. "He says when [not if] he is president again, a new Republican administration will put a stop to the [Justice Department] investigation that he views as the Biden administration working to hit him with criminal charges — or even put him and his people in prison."

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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