The Daily Fuckup

The Justice Department told a federal appeals court on March 2, 2023, that Donald Trump should not be protected by absolute immunity from civil damages claims filed by Capitol Police officers and Democratic lawmakers over the Jan. 6 attack. The filing does not decide whether Trump is liable. It asks the court to let the cases continue past the immunity question so the plaintiffs can keep pressing their claims.

The dispute is over whether Trump’s conduct before and during the effort to overturn the 2020 election can be treated as outside the reach of civil suit. Trump’s lawyers have argued that his statements were political speech and that he should not be held personally responsible for the violence at the Capitol. The Justice Department’s position does not accept that he should be shut out of the case at the threshold. Instead, it argues that the suits should not be dismissed on absolute-immunity grounds.

That distinction matters. Surviving an immunity challenge is not the same as losing on the merits. If the appeals court agrees with the Justice Department, the plaintiffs could keep trying to prove that Trump’s actions contributed to the injuries they say they suffered. The underlying factual and legal questions would still have to be tested in court.

The civil cases were brought by officers and lawmakers who were at the Capitol when the mob breached the building and forced lawmakers to flee or take cover. Their lawsuits seek damages tied to the attack and the events leading up to it. Separate from criminal prosecutions, the civil cases offer another route for plaintiffs to try to establish responsibility for Jan. 6.

The filing leaves those lawsuits in place for now and signals that the government does not think Trump’s former office automatically shields him from civil claims tied to the attack. It does not answer whether the plaintiffs will ultimately win. It does, however, keep alive a case that will continue to test how far immunity reaches when a former president is accused of helping set events in motion at the Capitol.