Trump’s Immunity Claims Pull DOJ Into Jan. 6 Legal Fight

(Bloomberg) -- The Justice Department finds itself in a politically precarious situation as it decides whether to back Donald Trump against lawsuits over the US Capitol riot — and it’s asking a court for more time to make the call.

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Trump argues he is entitled to immunity against the civil suits by Democratic members of Congress and law enforcement officers seeking to hold him responsible for the January 2021 attack. Lawyers for the US this week asked the federal appeals court in Washington for a second deadline extension to decide whether to submit a brief – and, if so, what to say – in the trio of cases.

Trump contends that because he was president at the time, he can’t be sued over tweets or other public statements and acts.

Trump’s immunity claim has pulled the Justice Department into a case it hadn’t asked to be involved in. The department historically has embraced robust legal protections for whoever sits in the White House. But supporting Trump risks intense public backlash and puts government lawyers in the uncomfortable position of taking an official stance on the role he played in the Jan. 6 attack, even as a special counsel appointed by Attorney General Merrick Garland pursues a criminal investigation into those very events.

Read More: Jan. 6 Panel Releases Report Blasting Trump for Capitol Assault

It is a “delicate issue,” said Robert Loeb, a former senior official in the appellate office of the department’s Civil Division. “They don’t want the president being sued for damages right and left,” he said.

A Justice Department spokesperson and a lawyer for Trump weren’t immediately available for comment.

Unwelcome Role

The federal government isn’t a party to the litigation, and the Justice Department didn’t ask to file a brief. But after hearing arguments on Dec. 7, the US Court of Appeals for the DC Circuit “invited” the department to share its views – an invitation that isn’t mandatory but would be unusual for the department to decline.

Read More: Trump Has Rough Legal Road Ahead Without Presidential Shield

The appeals court granted the department’s first extension request last month, resetting the deadline from Jan. 17 to Feb. 16. On Wednesday the government asked for two more weeks, or until March 2. Trump’s lawyers don’t oppose the longer timeline, according to the latest filing.

In asking for another delay, lawyers from the Civil Division’s appellate office told the DC Circuit that “all potentially affected government components” had to be consulted before US Solicitor General Elizabeth Prelogar could decide what to do.

The notice didn’t specify which offices were part of those discussions. Loeb said that for a high-profile, sensitive case like this one, top officials across the Justice Department and possibly in the White House counsel’s office might be involved — all of which takes time.

Loeb said the department had apparently decided to lie low on the Jan. 6 civil cases but the court understandably wanted to hear from it as “the keeper of immunity for the executive branch.”

DOJ Headaches

The legal entanglements that followed Trump after he left the White House have caused headaches for the Justice Department in the Joe Biden administration before.

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In June 2021 the department said it would continue to support Trump’s position in a defamation case brought by the writer E. Jean Carroll. Trump and the government have argued that he was acting in his official capacity when he made the allegedly defamatory statements as a sitting president, and that entitles him to protection against being sued — a situation Biden criticized on the 2020 campaign trail.

Department lawyers explained at the time that they weren’t condoning Trump’s “crude and disrespectful” comments in response to Carroll’s accusation that Trump had raped her — an accusation Trump has denied. They wrote that the case involved the government’s broader “institutional interests” in protecting federal employees from being taken to court.

Avoiding Jan. 6

But the department has distanced itself from the civil cases seeking to hold Trump and his allies liable for the violence and disruption of Congress’s activities on Jan. 6.

In 2021 the government rejected former Republican Representative Mo Brooks’s claim that he was acting in his official capacity when he spoke at a rally before the Capitol attack and was entitled to have the US government step in on his behalf. Department lawyers wrote that the rally was “campaign activity” and that the allegations against Brooks – that he conspired to incite violence against Congress – wouldn’t fall within the scope of his employment.

A judge later dismissed Brooks from the case.

Trump appealed after a federal judge in Washington rejected his immunity defense. During arguments, a three-judge panel of the DC Circuit grappled with how to balance Trump’s sweeping claim of immunity for his public statements with the plaintiffs’ position that interfering with the peaceful transfer of power crossed the line.

Trump’s lawyer said that even exhortations to “burn Congress down” would be covered.

The case is Blassingame v. Trump, 22-5069, US Court of Appeals for the DC Circuit (Washington).

Read More: Trump Claims Immunity Over ‘Burn Congress Down’ Hypothetical

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