(Bloomberg) -- Former President Donald Trump isn’t currently entitled to absolute immunity against civil lawsuits seeking to hold him responsible for the violence at the US Capitol during the Jan. 6 attack, a federal appeals court ruled.
The US Court of Appeals for the DC Circuit on Friday rejected Trump’s argument that because he was president at the time, he was shielded from suits over his actions leading up to the Jan. 6, 2021, riot and his comments to a rally of supporters that morning. The majority said Trump could try to claim immunity again later in the case, but not at this early stage.
The ruling is a significant setback for Trump as he fights criminal charges that he conspired to overturn the 2020 election results. His defense team is arguing that he’s also entitled to executive immunity against the prosecution, teeing up a similar fight over whether the post-election activities in the indictment fell under the umbrella of his official duties as president.
The appeals court noted in Friday’s opinion that its analysis dealt with when a president could be immune against certain types of civil claims, not the issue of immunity against criminal prosecution.
Read More: Trump Sees Immunity Fight as Path to Delay 2020 Criminal Trial
DC Circuit Chief Judge Sri Srinivasan wrote for the three-judge panel that Trump wouldn’t be entitled to immunity against the civil suits if he were acting as a candidate for reelection during the events at issue. The court rebuffed the “categorical rule” Trump’s lawyers proposed that any time a sitting president spoke on matters of public concern, that qualified as an official act.
“That is a sweeping proposition, and one that ultimately sweeps too far,” Srinivasan wrote.
Trump’s immunity bid failed at this stage because he had argued that his status as a candidate didn’t matter as long as he was also the president, the court held. But the judges said that as the case moved forward, Trump could try to revive the immunity fight by presenting evidence that the Jan. 6 rally speech and other post-election activities laid out in the lawsuits were “official actions.”
Trump spokesperson Steven Cheung said in a statement that the ruling was “limited, narrow and procedural.”
“The facts fully show that on January 6 President Trump was acting on behalf of the American people, carrying out his duties as president of the United States,” Cheung said.
Joe Sellers, a lead attorney for the plaintiffs who sued Trump, said in a statement that they look forward to pressing ahead with the case.
“Today’s victory brings us a crucial step closer to holding the former president accountable for the harm brought on members of Congress and on our democracy itself,” Sellers said.
The bulk of Srinivasan’s opinion was joined by his colleagues on the panel, Judge Greg Katsas and Senior Judge Judith Rogers. Srinivasan was nominated by former President Barack Obama, Katsas was nominated by Trump, and Rogers was nominated by former President Bill Clinton.
Trump’s lawyers can now petition the full DC Circuit bench to reconsider Friday’s ruling or ask the US Supreme Court to intervene. Meanwhile, he’s expected to continue to fight the civil cases brought by police officers and Democratic members of Congress if they move to trial.
Srinivasan on Friday made clear that the court wasn’t ruling on the core question of Trump’s responsibility for the Jan. 6 attack. The court also signaled potential future fights ahead, including Trump’s claim that his post-election activities were protected under the First Amendment.
Trump was indicted on election interference charges in August by Special Counsel John “Jack” Smith’s office. The former president isn’t directly accused of inciting the Jan. 6 attack or sedition, but prosecutors did lay blame at his feet. The indictment features some of the same events as in the civil cases, alleging he promoted false election fraud claims to supporters and directed them to the Capitol to try to obstruct Congress’s certification of the election. Trump has pleaded not guilty and a trial is set for March 4.
Read More: Trump Doesn’t Deserve Immunity in Jan. 6 Lawsuits, DOJ Says
In the civil cases, US District Judge Amit Mehta rebuffed the immunity claim in a February 2022 decision, finding that Trump’s post-election actions and speech were all part of an effort to stay in power, which wasn’t a presidential function. This included Trump’s actions to contest and complain about the results in battleground states, urging state and federal lawmakers to intervene, and organizing and speaking at the Jan. 6 rally before the Capitol attack.
The Justice Department filed a brief saying the US government’s position was that an allegation of inciting “imminent private violence” wasn’t protected under the First Amendment and wouldn’t fall under a president’s duties, so Trump couldn’t get immunity at this stage.
Srinivasan wrote that the court rejected that approach because it would require digging into First Amendment questions the majority hadn’t addressed yet. He also said that tying a president’s immunity against being sued for officials acts to whether the speech is constitutionally protected was an “uneasy” fit.
The government’s position may let a president escape being sued over speech that was constitutionally protected but outside the scope of their duties, the judge wrote. And on the other hand, Srinivasan said, it could open the door to lawsuits against a president over speech that was otherwise “delivered in an official capacity,” such as during a State of the Union address.
The case is James Blassingame v. Donald Trump, 22-5069, US Court of Appeals for the DC Circuit.
(Updates with statement from Trump spokesperson.)
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