Trump doesn’t have presidential immunity from lawsuits over January 6, appeals court rules

By Katelyn Polantz and Holmes Lybrand, CNN

Washington (CNN) — Former President Donald Trump can be sued in civil lawsuits related to the January 6, 2021, US Capitol riot in a long-awaited, consequential decision from the federal appeals court in Washington, DC.

The decision will have significant implications for several cases against Trump in the Washington, DC, federal court related to the 2020 election. The decision arises out of lawsuits brought by Capitol Police officers and Democrats in Congress.

The opinion, written by Chief Judge Sri Srinivasan, states that not everything a president does or says while in office is protected from liability.

The president “does not spend every minute of every day exercising official responsibilities,” the opinion said. “And when he acts outside the functions of his office, he does not continue to enjoy immunity. … When he acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.”

The decision to allow the January 6 lawsuits against Trump to proceed was unanimous among the three judges on the DC Circuit Court of Appeals. Judge Greg Katsas concurred with the decision, and Judge Judith Rogers concurred in part. Trump will still be able to seek additional appeals on the issue, if he chooses.

But at this time, the decision allows three lawsuits against Trump from Capitol Police officers and members of Congress who are seeking recovery from emotional distress and physical injury from the attack to move forward, and at least a half dozen other lawsuits against Trump may be able to emerge from dormancy too. The complaints largely rely on a federal law prohibiting individuals from conspiring to prevent someone from holding federal office.

The appeals court’s decision may also shape how judges look at arguments of immunity that Trump is making in his federal criminal case around the 2020 election, though the ruling on Friday only applies to civil cases.

Two of the lawsuits were brought by Democratic House members, while a third was filed by Capitol Police officers.

The lawmakers allege that they were threatened by Trump and others as part of a conspiracy to stop the congressional session that would certify the 2020 presidential election on January 6, 2021, according to the complaints. They argue that Trump should bear responsibility for directing the assaults.

Trump moved to dismiss the lawsuits against him on several grounds, including presidential immunity, which the DC District Court rejected, saying that the former president’s actions in the lead-up to the riot at the US Capitol riot were all an effort to remain in office and not official functions of his presidency.

The district court did find that Trump was protected by presidential immunity from the claim that he failed to stop to the riot, saying that he would be acting in his official presidential powers in that instance.

The appeals court opinion on Friday distinguished between campaign speech a president seeking reelection might make and official actions of the presidency.

Trump had argued in court he was immune for anything he said while president, but the court found that is not the case – specifying that the January 6 Trump rally that preceded the riot at the Capitol is potentially part of his campaign.

Trump still will be able to contest the facts of the case as the lawsuits move forward. The appeals court said Trump also may be able to make more arguments around immunity before the January 6 lawsuits move into extensive evidence-gathering phases.

The court’s decision on Friday “is flexible enough to accommodate rare cases where even speech made during a campaign event may be official,” Katsas wrote in his concurring opinion. “And it is cautious, in leaving open both the question whether the [Trump January 6] speech at issue is entitled to immunity and, if not, whether the First Amendment nonetheless protects it.”

The opinion stated a president running for a second term was acting “as office-seeker, not office-holder” when he was campaigning, such as by attending a private political fundraiser, hiring and firing campaign staff and while speaking in political advertisements and reelection campaign rallies.

Steven Cheung, a spokesman for Trump’s reelection campaign, responded to the opinion on Friday by calling it “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 in a statement provided to CNN.

Lawyers for injured Capitol Police officers and Democratic members of Congress who are suing Trump cheered the decision on Friday, after it had the lawsuits on hold for a year.

“This is the right result and an important step forward in holding former President Trump accountable for the insurrection on January 6,” Matt Kaiser, lawyer for Democratic Rep. Eric Swalwell, a plaintiff in the lawsuit, said on Friday.

“Today’s ruling makes clear that those who endanger our democracy and the lives of those sworn to defend it will be held to account,” attorney Patrick Malone said in a statement following the opinion’s release on Friday. “Our clients look forward to pursuing their claims in court.”

“We’re moving one step closer to justice, one step closer to accountability, and one step closer to healing some of the wounds suffered by [Officers] James Blassingame and Sidney Hemby,” said Kristy Parker, counsel at Protect Democracy. “As this case shows, our constitutional order does not grant former President Donald J. Trump immunity for his attempt to subvert our democracy.”

This story has been updated with additional reporting.

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