WaPo (“Trump can be held civilly liable in Jan. 6 riot, judges rule“):
Donald Trump can be held civilly liable for the actions of the mob that attacked the U.S. Capitol on Jan. 6, 2021, an appeals court ruled Friday in a long-awaited decision that could clear the way for lawsuits seeking financial damages from the former president.
The unanimous decision by a federal appeals court in Washington is expected to be appealed and also offers insight into how the court could view Trump’s argument that presidential immunity also protects him from being charged criminally for his efforts to stay in power after the 2020 election.
Two U.S. Capitol police officers and about a dozen Democratic lawmakers sued Trump in 2021, saying he potentially instigated violence on Jan. 6 by telling supporters the election was stolen and urging them to march to the Capitol and “fight like hell.” The plaintiffs sued under a roughly 150-year-old law that bars the use of force, threats or intimidation to prevent government officials from carrying out their duties and allows anyone injured by such actions to collect damages. They argued Trump violated the statute — designed to combat Ku Klux Klan violence after the Civil War — by conspiring with members of far-right groups to keep lawmakers from confirming Joe Biden’s election win.
Special Counsel Jack Smith also accused Trump of violating a law written to target the Klan, along with other federal crimes.
Trump and his lawyers have argued that he is protected from both the lawsuit and the criminal charges brought by Special Counsel Jack Smith because of the absolute immunity conferred on a president for anything done as part of his official duties. Under U.S. Supreme Court precedent, presidents can be held liable only for personal actions that fall beyond “the outer perimeter” of their responsibilities.
The question for the appellate court was whether claiming the election was stolen and telling his supporters to go to the Capitol and “fight like hell” crossed that line.
At a hearing nearly a year ago, the judges argued about how to distinguish between protected presidential speechmaking and unprotected personal agitating. One judge, a Trump appointee who served in his administration, said during the December 2022 hearing that Trump’s case was complicated because the former president was plausibly accused of instigating violence in his message to supporters.
The “arguable incitement,” Judge Gregory G. Katsas said, “makes this a hard case.”
[…]
The question of when and how a former president can be charged criminally, rather than sued in civil court, has never arisen before. Trump’s attorneys argued that the civil standard applied in his criminal case. “Trump’s efforts to ensure election integrity, and to advocate for the same” were “at the heart of his official responsibilities as President,” they wrote. Even if Trump maliciously pursued claims he knew were false, his lawyer’s argued, “the President’s motivations are not for the prosecution or this Court to decide.”
Smith’s office replied that if there is any criminal immunity for former presidents, it is be “narrower” than civil immunity, because otherwise it would prevent prosecution even for undisputable crimes such as bribery. They compared former presidents to judges, who enjoy protection from lawsuits but are “subject to criminal prosecutions as are other citizens.”
Trump is “not above the law,” they wrote.
But even under the “outer perimeter” standard, they argued, Trump would not be immune: “The indictment alleges that the defendant acted deceitfully or corruptly to secure a personal benefit to himself as a presidential candidate, not to carry out constitutional obligations entrusted to the presidency.”
The question of whether such immunity applies to Trump’s federal criminal case in D.C. still needs to be weighed by U.S. District Court Judge Tanya S. Chutkan. That decision is also certain to be appealed.
The appeals court had asked the Justice Department to weigh in on Trump’s civil immunity as well. The department responded, months before charging Trump over much of the same behavior, that the claims described conduct outside the scope of a president’s official duties.
“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,” attorneys for the Justice Department’s Civil Division wrote. “But that traditional function is one of public communication. It does not include incitement of imminent private violence.”
A lower-court judge, Amit P. Mehta, rejected Trump’s claim of immunity in February 2022. The president has “no role” in the “Certification of the Electoral College vote,” he said and “false claims of election fraud and theft” is “not speech in furtherance of any official duty.”
The outcome strikes me as just, even if the underlying legal theories are complicated and largely untested. While I think the January 6 Committee provided sufficient evidence of incitement to meet the civil “preponderance fo the evidence” standard, there’s really no precedent for this case.
That said, this part of the ruling (and I’ve only read excerpts in the above WaPo report and one at POLITICO) strikes me as suspect:
“When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act,” wrote Chief Judge Sri Srinivasan of the D.C. Circuit Court of Appeals. “The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office.”
However, the appeals court left the door open for continued efforts by Trump to try to prove that he was acting as president, rather than as a candidate for reelection, when he addressed the angry crowd at the Ellipse.
Here, I agree with Trump’s lawyer that this is a distinction without meaning. All first-term Presidents are simultaneously President and campaigning for re-election. Distinguishing between those acts is a mug’s game, as arguably every Presidential act is made with an eye on public opinion. (One could, I suppose, argue that, having lost the election, there was no longer a campaign.)
I would expect the full DC Circuit, should it grant an appeal, to rule the same way. Whether the heavily-Republican US Supreme Court, with three Trump appointees, would uphold the ruling is anyone’s guess. My suspicion is that they would, as it would enhance their credibility in other cases.
Additionally, given that Trump is being charged under federal and state criminal laws for related conduct, it would seem that the latter should get precedent. Given the lower evidentiary standards and lessened due process rights in a civil trial, it would be problematic at best to allow the civil trials to proceed before the conclusion of the criminal cases, lest the latter be tainted.
