Former President Donald Trump can be sued for actions he took leading to the Jan. 6 attack on the U.S. Capitol, a federal appeals court panel ruled on Friday.
Trump had sought to dismiss the cases brought by members of Congress and police officers harmed by the events of Jan. 6, 2021, before evidence is presented, arguing that he acted in his official capacity as president when delivering a speech ahead of the riot.
But the D.C. Circuit Court of Appeals rejected Trump’s preemptive dismissal request, saying he will have to prove that he was acting in an official capacity during the case.
“President Trump has not demonstrated an entitlement to dismissal of the claims against him based on a President’s official-act immunity,” the court’s ruling said.
The 3-0 decision was written by Judge Sri Srinivasan, a Barack Obama appointee. Judge Gregory Katsas, a Trump appointee, issued a concurrence, and Judge Judith Rogers, a Bill Clinton appointee, wrote her own concurrence joining only the part of Srinivasan’s decision rejecting Trump’s dismissal request.
The court’s ruling requires the lawsuit to continue, but does not preclude Trump from asserting that his actions were done in his official capacity during those future proceedings. The ruling does, however, strongly suggest such arguments are unlikely to win the day. The judges suggested Trump was acting in his capacity as a candidate for reelection when he baselessly questioned the election results in the run-up to Jan. 6, rather than in his capacity as president.
The ruling stems from three separate lawsuits seeking damages for physical and psychological harm caused by Trump’s alleged incitement of the Jan. 6 attack on the Capitol. The cases include one brought by Rep. Eric Swalwell (D-Calif.), another brought by 11 Democratic House members, and a third brought by U.S. Capitol Police officers James Blassingame and Sidney Hemby.
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Presidents are protected from private lawsuits for acts committed in their official role in office, under the 1982 Supreme Court precedent in Nixon v. Fitzgerald. That decision provided current and former presidents with an “absolute immunity from damages liability predicated on his official acts.”
But presidents, sitting and former, are not protected from civil liability for actions in an unofficial capacity, according to the 1997 precedent in Clinton v. Jones. The court in that case ruled that a lawsuit brought by Paula Jones ― who claimed that President Bill Clinton, during his time as Arkansas governor, retaliated against her for allegedly refusing to perform sexual acts ― could go forward, as there is “no support for an immunity for unofficial conduct.”
In his effort to dismiss the damages claims against him related to the events of Jan. 6, Trump argued that “a President’s speech on matters of public concern is invariably an official function,” according to the appeals court decision. Therefore, he argued, anything he said on or leading up to Jan. 6 was a protected official act.
The court said it “cannot accept that rationale.”
While the court did not explicitly rule that Trump was not acting in his official capacity, Srinivasan’s opinion laid out the argument for why the precedents of Fitzgerald and Jones count heavily against him.
The context around Trump’s efforts to overturn the election on and before Jan. 6 is what matters. Instead of acting in his official capacity as president, Trump acted in his unofficial capacity as a candidate for reelection, the court said. Trump’s statements falsely claiming the election was corrupted were made as a candidate, he legal filings in courts specifically stated they were made in his unofficial capacity as a candidate, and the “Save America” rally on Jan. 6 was paid for out of campaign funds.
If incumbent presidents were protected from all civil liability no matter what capacity they acted in, they would have a massive advantage over non-incumbent challengers, the court said.
With the rejection of Trump’s dismissal request, the case will return to district court for discovery, unless Trump chooses to appeal to the Supreme Court. Trump is currently facing criminal charges for his alleged actions related to the Jan. 6 attack in federal court as well as in Fulton County, Georgia.