Courts

DOJ Makes Radical Argument That Inciting Violence Is *Not* Within The Scope Of The President's Job

As opposed to Trump, who says presidents are free to incite at will.

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Trump Supporters Hold “Stop The Steal” Rally In DC Amid Ratification Of Presidential Election

(Photo by Samuel Corum/Getty Images)

Yesterday, the Justice Department filed an amicus brief arguing that the president is not immune from civil suit if he incites violence under the test outlined in Brandenburg v. Ohio — a position which is sure to come back to bite President Biden if and when he ever directs his supporters to storm Congress to prevent the peaceful transition of power.

The brief was filed in a case captioned Blassingame v. Trump, which is a consolidation of multiple suits by Capitol Police officers and Members of the House against the former president for his role in the January 6, 2021 Capitol Riot. A year ago, Judge Amit Mehta ruled that Trump’s speech on the Ellipse that day plausibly satisfied the Brandenburg definition of incitement as inviting “imminent, lawless action,” writing:

President Trump’s January 6 Rally Speech was akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer’s home. He invited his supporters to Washington, D.C., after telling them for months that corrupt and spineless politicians were to blame for stealing an election from them; retold that narrative when thousands of them assembled on the Ellipse; and directed them to march on the Capitol building—the metaphorical corn-dealer’s house—where those very politicians were at work to certify an election that he had lost.

The trial court further held that Trump was not acting within the scope of his presidential duty at the time, since the president bears no role in the congressional certification of his successor.

Trump appealed, arguing that the president is “absolutely immune” from any and all process regarding his comments on political matters, or, as he put it, that immunity should not “be undercut if the presidential act in question is unpopular among the judiciary.”

No doubt that last bit was impressive to Circuit Judges Srinivasan, Katsas, and Rogers. It’s also reminiscent of Trump’s argument in the E. Jean Carroll defamation case, that he was merely doing his job as president and commenting on the news of the day when he said that he could not possibly have assaulted the advice columnist because she was not his “type.”

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In its amicus brief, the government takes the narrowest possible position that would still expose Trump to liability. While expressing “no view on the district court’s conclusion that plaintiffs have plausibly alleged that President Trump’s January 6 speech incited the subsequent attack on the Capitol,” the DOJ insists that “actual incitement would be unprotected by absolute immunity even if it came in the context of a speech on matters of public concern.”

“Resolving the appeal on that narrow basis would allow the Court to avoid comprehensively defining the scope of the President’s immunity for speech to the public—including when and how to draw a line between a President’s speech in his presidential capacity and speech in his capacity as a candidate for office,” the DOJ urges, adding that “any decision about how to define the limits of absolute immunity in campaign contexts should await a case in which the relevant issues have been fully briefed and it is necessary to decide them.”

Of course, this just punts the issue down the road for another day, as the government itself readily acknowledges.

Such a narrow decision would leave for further proceedings in the district court (and, if necessary, a future appeal) any renewed assertion of absolute immunity more narrowly focused on whether the former President’s speech actually constituted incitement.

But the federal judiciary has never been afraid to punt on anything so, perhaps they’ll take Principal Deputy Assistant Attorney General Brian Boynton up on the suggestion and save this issue for another day.

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Blassingame v. Trump [Circuit Docket, via Court Listener]
Blassingame v. Trump [Trial Docket, via Court Listener]

Liz Dye lives in Baltimore where she writes about law and politics.

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