December 1, 2023
Former President Donald Trump must face a trio of lawsuits seeking to hold him liable for inciting the Jan. 6, 2021, insurrection at the U.S. Capitol, a D.C. Circuit panel ruled Friday, rejecting Trump’s claim that he has absolute immunity from liability.
In a highly anticipated opinion delivered a year after the case was argued last December, a three-judge panel said Trump’s proffered test for immunity — that the president is insulated from civil suits whenever he speaks on matters of public concern — goes too far.
Still, U.S. Circuit Judge Sri Srinivasan wrote that the decision is “not necessarily even the final word on the issue of presidential immunity.” His opinion said the ex-president will get the chance to offer facts backing his immunity claims to the trial court before the litigation delves into the merits.
“In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate,” Judge Srinivasan said.
The U.S. Supreme Court has recognized that a president cannot be sued for official actions during his presidency, but those protections do not extend to unofficial conduct. And in a first-term president’s campaign for a second term, he does so in “an unofficial, private capacity as office-seeker, not an official capacity as office-holder,” Judge Srinivasan said.
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Cohen Milstein Sellers & Toll PLLC partner Joseph Sellers, who represents the plaintiffs, expressed confidence that the district court would again reject Trump’s immunity defense. He pointed to “overwhelming” evidence — such as the U.S. House Select Committee report on the Jan. 6 attack — that the then-president acted in his private capacity leading up to and during the attack.
The various evidence suggests that, upon return to the district court, “it’ll be quite clear that President Trump has no immunity from suit in this case,” Sellers said.
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The plaintiffs are also represented by Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC, Janette McCarthy-Wallace, Anthony P. Ashton and Anna Kathryn Barnes of the National Association for the Advancement of Colored People and Robert B. McDuff of the Mississippi Center for Justice.