Trump faces major setback as DOJ refuses to back his immunity claims in Jan. 6 lawsuits
Former President of the United States Donald Trump speaking with supporters at a "Save America" rally. (Gage Skidmore/Flickr)

Former President Donald Trump is claiming absolute immunity from any accountability for the speech he made at the Ellipse on Jan. 6, 2021, in which he called on the crowd to march to the Capitol.

The House Select Committee investigating the Jan. 6 attack on Congress and the attempt to overthrow the 2020 election called witnesses that revealed Trump knew that his supporters were armed and told the Secret Service to remove the metal detectors because they weren't there to hurt him. Trump even made the call to the Secret Service from the podium to let people in, regardless of what they were carrying.

Given Donald Trump was still president at the time of the speech, he argued he has immunity against prosecution. In a new filing, the Justice Department, however, is arguing in new court documents that it isn't the case.

"Nixon v. Fitzgerald establishes a rule of absolute immunity for the president's official acts. It is not a rule of absolute immunity for the president regardless of the nature of his acts," the DOJ wrote in the filing posted Thursday.

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"Here, the district court concluded that plaintiffs' complaints plausibly allege that President Trump's speech at the rally on Jan. 6, 2021, precipitated the ensuing attack on the Capitol—and, in particular, that the complaints plausibly allege that the former president's speech encouraged imminent private violent action and was likely to produce such action," the filing continues. "The United States expresses no view on that conclusion, or on the truth of the allegations in plaintiffs' complaints. But in the United States' view, such incitement of imminent private violence would not be within the outer perimeter of the Office of the President of the United States."

The court filing then makes it clear that they reject the idea that Trump is covered by absolute immunity for the speech on Jan. 6.

"In this court, President Trump has not challenged the district court's conclusion—reiterated by plaintiffs on appeal—that the complaints plausibly allege that his speech instigated the attack on the Capitol. Instead, his briefs advance only a single, categorical argument: A president is always immune from any civil suits based on his 'speech on matters of public concern' Trump Br.7—even if that speech also constitutes incitement to imminent private violence," the court filing says.

It goes on to make the real kicker. "The United States respectfully submits that the court should reject that categorical argument. And because that is the only argument the former president has pressed on appeal, the court could affirm the district court's order on that narrow ground without attempting to comprehensively define the boundaries of the president's immunity for his speech on matters of public concern—including when and how to draw a line between the president's official and electoral speech."

The full court filing can be read here.