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Trump Claims Immunity Against Jan. 6 Lawsuit Because His Efforts To Overturn Election Were Part Of His Presidential Duties

Alison Durkee Forbes Staff Business
May 25, 2021,12:26pm EDT|120,067 views
https://www.forbes.com/sites/alisondurkee/2021/05/25/trump-claims-immunity-against-jan-6-lawsuit-because-his-efforts-to-overturn-election-were-part-of-his-presidential-duties/?sh=1dd5bab12a15

TOPLINE Former President Donald Trump argued in a court filing late Monday that he cannot be sued by Rep. Eric Swalwell (D-Calif.) for his alleged role in inciting the Jan. 6 attack on the U.S. Capitol building because he was conducting official presidential business, in a continuation of past claims that the presidency rendered him “immune” from legal liability —which legal experts have partially rejected when it comes to criminal charges.

KEY FACTS
Swalwell is suing Trump and allies including Donald Trump Jr. and Rudy Giuliani over the Jan. 6 riot, alleging they violated the Ku Klux Klan Act through their claims of election fraud and attempts to block Congress from certifying the election results, particularly at a rally Trump spoke at that took place immediately before the Capitol was attacked.

In a motion to dismiss the lawsuit, lawyers representing the ex-president and his son argued that Trump has “absolute immunity” against legal action over conduct while he was president.

Legal experts broadly agree that presidents can be criminally charged after leaving office, including for something committed while they were president, though the U.S. Supreme Court ruled in Nixon vs. Fitzgerald that ex-presidents are immune from being sued in civil cases for damages—such as Swalwell’s suit—that arise from their official acts as president.

Based on that precedent, Trump’s attorneys allege that the then-president’s efforts to overturn the election results were part of his presidential duties, claiming immunity would only not apply if Trump were conducting “purely personal and purely unofficial actions.”

“It is well recognized that rousing and controversial speeches are a key function of the presidency,” Trump’s lawyers argued in defense of his Jan. 6 rally speech—in which he pushed false election fraud claims and argued for lawmakers and Vice President Mike Pence to block the election results—claiming the then-president was “advocating for … congressional action.”

The motion also argues that Trump’s false claims about the election were protected speech under the First Amendment, an argument that some legal experts have cast doubts on and suggested could potentially rise to the level of unprotected incitement of violence.

CRUCIAL QUOTE
“While holding that office, former President Trump was free to advocate for the appointment and certification of electors, just as he was entitled to advocate for the passage or defeat of a constitutional amendment, or the reconsideration of a congressional act over his veto even though the President does not directly participate in those congressional acts,” Trump’s lawyers argue.

KEY BACKGROUND
Trump repeatedly claimed he had immunity in responding to the lawsuits brought against him while he was president and he was never charged with a crime while in office. The Supreme Court did put a dent in Trump’s immunity theory in a 2020 ruling on a grand jury subpoena for his tax returns, with Chief Justice John Roberts writing, “No citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.” Since departing the White House, Trump has become more open to legal jeopardy, and faces multiple investigations from prosecutors including the Fulton County District Attorney in Georgia, Manhattan District Attorney Cyrus Vance and New York Attorney General Letitia James. In addition to Swalwell’s suit, 11 other House lawmakers have also brought a separate lawsuit against Trump and Giuliani for their alleged role in the Jan. 6 attack.



Alison Durkee
I am a New York-based journalist covering breaking news at Forbes. I previously covered politics and news for Vanity Fair and Mic, and as a theater critic I serve as a member of the New York Outer Critics Circle. Follow me on Twitter @alisond64 or get in touch at [e-mail].
https://www.forbes.com/sites/alisondurkee/2021/05/25/trump-claims-immunity-against-jan-6-lawsuit-because-his-efforts-to-overturn-election-were-part-of-his-presidential-duties/?sh=1dd5bab12a15