Federal Court Holds Trump Can Be Sued by Police Depts for Followers’ Actions in Capitol Riot

After thousands of his followers stormed the US Capitol on January 6, 2021, then-US President Donald Trump was impeached on charges of inciting the attack. In a Senate trial held after he left office weeks later, Trump was acquitted by a minority of senators, with many who had condemned him saying the trial was a political move.

A US federal appeals court has found that US President Donald Trump can be held liable for the actions of his followers during the January 6 attack on the US Capitol building.

“Speaking to the public on matters of public concern is a traditional function of the Presidency, and the outer perimeter of the President’s Office includes a vast realm of such speech,” Justice Department attorneys wrote in a brief that was released on Thursday.

“But that traditional function is one of public communication. It does not include incitement of imminent private violence of the sort the district court found that plaintiffs’ complaints have plausibly alleged here.”

A group of lawsuits has been filed against the former president by Democratic lawmakers and US Capitol Police.

The DOJ commentary came at the invitation of the federal appeals court, which struggled to arrive at a decision in the December case.

Typically, the speech of a sitting US president is given an incredibly wide berth, being regarded as immune from being sued over their official actions - a defense Trump has invoked over his comments on January 6. However, the lawsuit was filed under a Reconstruction-era statute in response to the rise of the Ku Klux Klan, a white supremacist terrorist group, that specifically allows for damages when force, threats, or intimidation were used to prevent government officials from carrying out their duties.

In February 2022, a federal court ruled Trump’s speech that day was not protected, and a trio of lawsuits seeking financial recompense could go ahead. The December hearing was an appeal of that decision.

“Presidents may at times use strong rhetoric. And some who hear that rhetoric may overreact, or even respond with violence,” the DOJ attorneys told the court. They pointed to another KKK case in 1969, Brandenburg vs. Ohio, in which the US Supreme Court found that speech “directed at inciting or producing imminent lawless action” or “likely to incite or produce such action” is not protected by the First Amendment.

“Just as denying First Amendment protection to incitement does not unduly chill speech in general, denying absolute immunity to incitement of imminent private violence should not unduly chill the president in the performance of his traditional function of speaking to the public on matters of public concern,” the attorneys wrote.

At a rally outside the White House on January 6, 2021, Trump told a massive gathering of his followers they had to “fight like hell” to “Stop the Steal,” referring to the certification of election results then underway by Congress. Trump claimed his election loss the previous November had been caused by widespread election fraud orchestrated by Democrats.

After the rally, thousands of attendees, joined by others who came specifically for the attack and brought weapons and combat gear, fought their way through the US Capitol Police and breached the Capitol, sending lawmakers scrambling for safety. Trump’s followers sacked the legislative building, but failed to capture the election results or any of their numerous political targets, which included Trump’s vice president, Mike Pence.

Five people died in the assault, including a Capitol Police officer and a female rioter who was shot by police outside the House chamber. The rioters were cleared from the building by thousands of National Guard soldiers, who garrisoned the city with more than 25,000 troops. Joe Biden, Trump’s rival who defeated him in the November 2020 election, was sworn in two weeks later under unprecedented security measures.

In the two years since, the DOJ has aggressively prosecuted all those found to have participated in the assault, amounting to hundreds of cases, and the US House of Representatives formed a select committee for a wider investigation of the planning process and sequence of events at the White House during the attack.