Lawsuits against Donald Trump over the U.S. Capitol riot can move forward, a federal appeals court ruled on Friday, rejecting the former president’s bid to dismiss the cases accusing him of inciting the violent mob on Jan. 6, 2021.
The U.S. Court of Appeals for the D.C. Circuit court knocked down Trump’s sweeping claims that presidential immunity shields him from liability in the lawsuits brought by Democratic lawmakers and police officers. But the three-judge panel said the 2024 Republican presidential primary frontrunner can continue to fight, as the cases proceed, to try to prove that his actions were taken in his official capacity as president.
Trump has said he can’t be sued over the riot that left dozens of police officers injured, arguing that his words during a rally before the storming of the Capitol addressed “matters of public concern” and fall within the scope of absolute presidential immunity.
The decision comes as Trump’s lawyers are arguing he is also immune from prosecution in the separate criminal case brought by special counsel Jack Smith that accuses Trump of illegally plotting to overturn his election loss to President Joe Biden. That case in Washington is one of four criminal cases Trump is facing as he tries to retake the White House in 2024.
Friday’s ruling underscores the challenges facing Trump as he tries to persuade courts, and potentially juries, that the actions he took in the run-up to the riot were part of his official duties as president. The judge presiding over his Capitol riot criminal trial is expected to also reject that claim.
While courts have afforded presidents broad immunity for their official acts, the judges made clear that that protection does not cover just any act or speech undertaken by a president. A president running for a second term, for example, is not carrying out the official duties of the presidency when he is speaking at a rally funded by his reelection campaign or attends a private fundraiser, the appeals court said.
“He is acting as office-seeker, not office-holder— no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office,” Judge Sri Srinivasan wrote for the court.
But the court said its decision is not necessarily the final word on the issue of presidential immunity, leaving the door open for Trump to keep fighting the issue. And it took pains to note that it was not being asked to evaluate whether Trump was responsible for the riot or should be held to account in court. It also said Trump could still seek to argue that his actions were protected by the First Amendment — a claim he’s also made in his pending criminal case — or covered by other privileges.
“When these cases move forward in the district court, he must be afforded the opportunity to develop his own facts on the immunity question if he desires to show that he took the actions alleged in the complaints in his official capacity as president rather than in his unofficial capacity as a candidate,” the court said.
Trump could ask the full appeals court to take up the matter or go to the U.S. Supreme Court. A lawyer for Trump, Jesse Binnall, did not immediately return a phone message seeking comment on the ruling. A Trump campaign spokesperson called the decision “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. Moreover, his admonition that his supporters ‘peacefully and patriotically make (their) voices heard,’ along with a myriad other statements prove that these Democrat Hoaxes are completely meritless,” spokesperson Steven Cheung said in a statement.
The lawsuits seek civil damages for harms they say they endured when rioters descended on the Capitol as Congress met to certify Biden’s election victory, smashing windows, engaging in hand-to-hand combat with police officers and sending lawmakers running into hiding. One of the lawsuits, filed by Rep. Eric Swalwell, a Democrat from California, alleges that Trump directly incited the violence at the Capitol “and then watched approvingly as the building was overrun.” Two other lawsuits were also filed, one by other House Democrats and another by officers James Blassingame and Sidney Hemby.
They have argued that Trump was acting “far beyond the ‘outer perimeter’ of his office when he conspired to use violence and intimidation to prevent members of Congress from carrying out their constitutional duty to count Electoral College votes and certify the results of the 2020 presidential election.”
The current appeal was decided by a unanimous three-court panel that included Judge Gregory Katsas, a Trump appointee to the bench who authored his own concurring opinion.
