Former President Donald Trump lost an important round with the Justice Department last week, when the department chose to file a brief not taking his side in the fight over his responsibility for the Jan. 6 riots. The department generally takes a broad view of executive privilege. But even a broad view has limits.
The lawsuit in question, brought by Democratic members of Congress and Capitol police officers, claims that Trump's speech to his supporters incited the violence that followed. The former president has claimed that even if it did, he is — as president — absolutely immune from suit.
The Justice Department was asked to weigh in on that point by the United States Court of Appeals. The Department did, last week, in a brief that took issue with Trump's claim to be absolutely immune from suit. "I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose voters," Trump famously claimed in the 2016 campaign. He might not lose voters, but he would lose the protections of the presidency.
"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," the brief asserted. "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."
In other words, even the president of the United States does not have the right to incite "private violence." Such speech is not protected. It may be a basis for liability. Even the shield of absolute immunity does not protect against the incitement of imminent private violence. Even the president of the United States cannot falsely cry "fire" in a crowded theatre.
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"The United States here expresses no view on the district court's conclusion that plaintiffs have plausibly alleged that President Trump's Jan. 6 speech incited the subsequent attack on the Capitol," the Justice Department wrote. "But because actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern, this court should reject the categorical argument President Trump pressed below and renews on appeal."
In other words, Trump cannot hide behind a wall of executive privilege. He must put forward his own defense in this action. What did Trump think his supporters were going to do when they got to the Capitol? What was he sending them to do? What did he expect them to do? Why didn't he try to stop them, if that wasn't what he wanted?
Trump seems determined to rerun the 2020 election, at least in his rallies. But it is one thing to revisit the old applause lines in a speech, and another to be caught on the defensive in expensive and intrusive litigation. Trump needs more court battles like a hole in the head. This is one more source of aggravation for him, one more occasion for him to be dragged through the mud for inciting a riot that resulted in deaths and serious injuries. That the Justice Department, which was willing to stand up for his claims to immunity for his comments about E. Jean Carroll, who accused him of rape, would not stand up for him here, is noteworthy.
Even absolute immunity has its limits. Leave it to Donald Trump to exceed them. This is one more lawsuit that he has to defend. At best, it will be a costly distraction and, most likely, an embarrassing one, as is everything that revisits Jan. 6, and makes the case — without a word being spoken — that the Republicans need to move on beyond Trump.
This Susan Estrich commentary is her opinion. She can be reached at sestrich@wctrib.com.
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