The Justice Department says Donald Trump is not entitled to absolute immunity against civil lawsuits seeking to hold him liable for the attack on the US Capitol on Jan. 6 because he’s accused of inciting “imminent private violence.”

Government lawyers agreed with Trump that presidents are entitled to robust protections against being sued over their official duties. But in a newly filed court brief, they disagreed that the allegations in the Jan. 6 cases against the former president entitle him to immunity at this stage. They didn’t take a position on whether he should ultimately win or lose on the merits.

“In the United States’ view, such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States,” Justice Department lawyers wrote.

Trump has argued that he cannot be sued at all over statements leading up to the 2021 assault because speaking on matters of public concern fell within the “outer perimeter” of his presidential duties.

A statement provided by a Trump representative credited the department with agreeing that “presidential immunity is broad and absolute” and suggested that any ruling that allowed the Jan. 6 cases to go forward could subject President Joe Biden to future lawsuits over his policy decisions.

“The DC Courts should rule for President Trump in short order and dismiss these frivolous lawsuits,” according to the statement.

A lead attorney for the plaintiffs suing the former president, Joseph Sellers, declined to comment.

The Justice Department’s position risks legal complications and political blowback. The government has been pulled into litigation over Trump’s role in the Capitol insurrection while a federal criminal investigation is underway. The department historically embraced a broad interpretation of the constitutional separation of powers that protects a current or former president from being sued over official acts, so taking a stance against Trump risks allegations of political bias.

The government said that presidential immunity in a case like this would turn on whether the speech at issue met the legal standards for inciting violence — leaving the door open for Trump to potentially try again with this defense in the future.

In a footnote alluding to the pending criminal probe being led by Special Counsel Jack Smith, government lawyers underscored that the cases at issue only involved private, civil claims. The US government “does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021, or acts connected with those events,” they wrote.

A federal district judge previously rejected Trump’s immunity defense against a trio of lawsuits filed by congressional Democrats and US Capitol Police officers who responded to the violence at the Capitol. Trump’s lawyers have urged the US Court of Appeals for the DC Circuit to reverse that ruling and dismiss the claims against him.

The government’s brief urged the DC Circuit to reject Trump’s “categorical argument” that a president would be immune against being sued over speech on issues of public concern even if that speech incited violence. They wrote that the court could uphold the lower court’s decision on that “narrow ground” and didn’t need to delve into the thornier questions about how to draw a line between a president’s “official and electoral speech.”

‘Sensitive Questions’

“Those are sensitive questions of fundamental importance to the Executive Branch, and this unusual case would be a poor vehicle for resolving them,” the Justice Department brief states.

The Justice Department’s break with Trump is likely to be popular with Democrats and Trump critics. The department had faced criticism from the left early in the Biden administration when it backed Trump’s position that a federal law that protects government employees against being sued over official duties shielded him against a defamation lawsuit; that case is pending.

The US isn’t a party in the Jan. 6 civil cases and hadn’t asked to get involved — the DC Circuit had invited the government to share its view in a friend-of-court brief after a three-judge panel heard arguments in December. In a sign of the legal complexities and political sensitivities at stake, the department had asked for two deadline extensions before filing its brief.

The Justice Department’s position on the immunity question doesn’t guarantee that Trump will lose, but it’s a significant setback to his case. Lawyers for Trump and for the plaintiffs have until March 16 to file a response.

Nixon v. Fitzgerald

Trump’s position is that the US Supreme Court has been clear that immunity applies to any conduct that falls within the “outer perimeter” of a president’s official duties, pointing to a 1982 decision, Nixon v. Fitzgerald. His lawyers argue that judges shouldn’t engage in “content-based analysis” and probe the “political context” of a president’s public discourse.

During the Dec. 7 hearing before the DC Circuit, Binnall argued that the immunity might not apply to actions by a president that were “purely personal,” but that any remarks on the “bully pulpit” would be covered. Responding to a series of hypothetical scenarios posed by the judges, Binnall said Trump couldn’t be sued even if he explicitly urged his supporters to “burn Congress down.”

The plaintiffs have countered that the allegations in their lawsuits – that Trump conspired to incite violence and disrupt Congress’ certification of the election results and the peaceful transfer of power – could not be considered part of his duties as president. This type of immunity doesn’t apply to everything a president says while in office, they argued.

Jonathan Cohn, a Justice official during the George W. Bush administration, said the department’s brief seemed to “play both sides” and could open the door to more lawsuits seeking to hold presidents personally responsible for the actions of people inspired by their rhetoric.

The burden of proof that the plaintiffs had to clear at this stage for the cases against Trump to move forward — plausibly laying out the facts that supported their allegations — was “a very low standard which could lead to all sorts of presidents being dragged through cumbersome discovery,” Cohn said.

Brianne Gorod, chief counsel of the Constitutional Accountability Center, which filed a brief in support of the plaintiffs, said in an email that the department had “powerfully” described how the Supreme Court laid out in the Nixon decision that presidential immunity covered official acts, not any action taken by an officeholder.

“The Department of Justice generally takes positions intended to advance executive branch prerogatives, so the fact that the DOJ brief recognized that the ‘incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States’ is a very powerful indicator of just how extreme Trump’s arguments are in this case,” she wrote.