Donald Trump’s status as president at the time does not protect him from facing civil lawsuits connected to the Jan. 6, 2021, attack on the Capitol from lawmakers and members of the Capitol Police, a Washington appeals court said Friday.
A unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld a lower court’s ruling to allow lawsuits to proceed under the Ku Klux Klan Act, an 1871 law from the wake of the Civil War that bans any conspiracy to prevent members of Congress from discharging the duties of their office.
The lawsuits allege that Trump, while he was still president, helped spark the attack by holding a rally and urging his supporters to “fight like hell” before they stormed the Capitol in a violent attack that disrupted the peaceful transfer of power for the first time in the country’s history.
Trump had tried to dismiss the suits, arguing that he was acting as president, speaking on “matters of public concern” about the integrity of the 2020 election in the lead-up to the attack, and that this made him immune from suit under longstanding Supreme Court precedents.
Writing for the panel, Chief Judge Sri Srinivasan found that Trump could not dismiss the suits on the broad claim that he was immune due to his status as president. Srinivasan wrote that the office of president is “agnostic” about who occupies it next, and a president campaigning for re-election to that office is not necessarily carrying out official duties of that office.
“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern,” wrote Srinivasan, an appointee of Barack Obama. “Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.”
The decision left open the possibility that Trump could still claim immunity for specific acts down the line or that his statements were subject to First Amendment protections. He could appeal the decision to the full D.C. Circuit or the Supreme Court.
All three members of the panel wrote about the case in Friday’s opinion. Judge Gregory Katsas, a Trump appointee, wrote that presidential immunity could still extend to campaign events — for instance if a president decided to fire their secretary of State at a campaign rally.
Katsas also invoked the moment former President George W. Bush first received the news of the Sept. 11, 2001, attacks while reading a book to schoolchildren in Florida.
“Had that event been a political rather than an official event, and had the President immediately responded with an off-the-cuff statement to rally or console the Nation, I have little doubt that the response would have been official,” Katsas wrote.
Judge Judith Rogers wrote that Trump’s claims of immunity were without merit and called much of the court’s opinion “unenforceable dictum.” Rogers said Trump had not identified any law or presidential duty connected to his speech prior to the attack.
“Although the line between President and candidate may not always be clear, President Trump’s alleged words and actions were directed toward promoting his victory in the 2020 presidential election rather than carrying out a designated official duty to confirm the integrity of the electoral process, to ensure the faithful execution of the laws, or to fulfill other official purposes,” wrote Rogers, an appointee of Bill Clinton.
The cases went before the D.C. Circuit panel last December, after U.S. District Judge Amit Mehta rebuffed Trump’s attempt to dismiss the cases because of presidential immunity. Earlier this year, the Justice Department wrote that Trump’s actions as president were not absolutely immune from suit.
Lawmakers and former Capitol Police officers initially sued Trump months after the attack, alleging he and others contributed to injuries they suffered as a result.
The lawmaker suit includes Democratic Reps. Steve Cohen of Tennessee; Veronica Escobar of Texas; Pramila Jayapal of Washington; Hank Johnson of Georgia; Marcy Kaptur of Ohio; Barbara Lee, Maxine Waters and Eric Swalwell of California; Jerrold Nadler of New York; and Bonnie Watson Coleman of New Jersey.
During a press conference Friday, Lee praised the decision, saying it “meant no one is above the law, even a president while engaged in conduct during his presidency and that’s extremely important.”
“I was sitting there on the floor that day, that fateful day and I witnessed the fact that the peaceful transfer of power was almost thwarted, but our democracy prevailed,” Lee said. “That day will always be a day that the country and the world saw this insurrection and this attempted coup.”
The group also includes former Rep. Karen Bass, D-Calif., and previously included Rep. Bennie Thompson, D-Miss., before he voluntarily moved to dismiss his suit.
Another suit was filed by U.S. Capitol Police officers James Blassingame and Sidney Hemby.
The lawsuit is in the pile of the former president’s legal troubles tied to the Jan. 6 attack. He faces two criminal prosecutions tied to his effort to overturn the 2020 election — a federal case in Washington and a state case in Fulton County, Ga.