Trump Fires Back at DOJ, Accuses Agency of Creating ‘Unprecedented’ Situation Over Jan. 6 Lawsuits

Former President Donald Trump arrives at Trump Tower the day after FBI agents raided his Mar-a-Lago Palm Beach home, in New York, on Aug. 9, 2022. (David 'Dee' Delgado/Reuters)

Former President Donald Trump asserted the U.S. Department of Justice (DOJ) is creating an “unprecedented” situation in arguing that he’s not immune to Jan. 6-connected lawsuits, according to a court filing submitted in a federal court on Thursday.

Earlier this month, the DOJ wrote that the former president cannot be immune to lawsuits if it was determined that he incited violence on Jan. 6. However, Trump’s team assailed (pdf) those claims and called the DOJ’s arguments an “unprecedented specific carve out” to absolute immunity that presidents should enjoy.

Trump’s speech on Jan. 6, 2021, “falls well within the broad scope of absolute immunity suggested by DOJ” and that the “DOJ’s argument ... defeats the purpose of having absolute immunity,” his lawyers wrote. “Absolute immunity aims to prevent the President from being subjected to the process of civil litigation. It recognizes that the President is a prominent national figure and constant target for litigation.”

“The very concept of Presidential immunity assumes some level of conduct that is wrongful yet beyond the reach of civil liability,” the filing said. “Collapsing the standard for Presidential immunity into the standard for protected First Amendment activity effectively ignores these purposes; it throws open the doors for civil claims against a President and creates a stricter standard for a President than for ordinary federal officials, who have successfully claimed qualified immunity on far more egregious facts.”

The federal District Court of Appeals for the District of Columbia is considering whether Trump could be held liable ahead of the events that occurred on Jan. 6. Several Democrat lawmakers have filed a lawsuit against the former president, as have U.S. Capitol Police officers.

On March 2, the DOJ wrote that Trump’s attorneys have come up with a “single, categorical argument” that the president is “always immune from any civil suits based on his ‘speech on matters of public concern’ … even if that speech also constitutes incitement to imminent private violence.”

That filing did not back any claims that were made by the lawmakers and Capitol Police officers. It merely noted that DOJ lawyers are “plausibly” alleging that Trump’s statements on Jan. 6 may have triggered the Capitol breach.

Police begin lobbing munitions into the crowd on the west front of the U.S. Capitol on Jan. 6, 2021. (Joseph Prezioso/AFP via Getty Images)

But Trump’s lawyers said that the 45th president’s usage of the word “fight” on Jan. 6 was “clearly metaphorical” and referred to “a political ‘fight,’ not a literal fistfight or other violent interaction,” noting that Trump said of Rudy Giuliani that “he’s got guts. He fights, he fights.” They wrote that “no reasonable listener would understand that metaphorical statement to suggest that Mr. Giuliani, a 76-year-old man, is getting into fist fights.”

Other Details

Meanwhile, a landmark 1982 Supreme Court ruling argued that presidents are absolutely immune from civil damages that come through their official acts as president.

As for Trump, he has repeatedly pointed to a speech he made during the Jan. 6 “Stop the Steal” rally, in which he called on demonstrators to “peacefully and patriotically” make their voices heard. On the same day, in what is still the most recent post on the former president’s Facebook account—which was reinstated in February—Trump asked for protesters to be peaceful.

“I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order — respect the Law and our great men and women in Blue. Thank you!” his post read.

Also on Thursday, the lawmakers and Capitol Police officers who sued Trump filed another brief, writing (pdf) that Trump’s claims of immunity should be thrown out by the court.

“Urging private citizens to use any means that obstruct Congress from carrying out its constitutional duty to certify a presidential election—a procedure the Framers expressly placed beyond presidential reach—bears no connection to any presidential responsibility,” lawyers for the lawmakers and police officers wrote Thursday.

Reps. Bonnie Watson Coleman (D-N.J.), Pramila Jayapal (D-Wash.), Maxine Waters (D-Calif.), Jerrold Nadler (D-N.Y.), Henry Johnson (D-Ga.), Stephen Cohen (D-Tenn.), Barbara Lee (D-Calif.), Veronica Escobar (D-Texas), Marcy Kaptur (D-Ohio), and former Rep. Karen Bass (D-Calif.), are among the lawmakers who have filed lawsuits against Trump.