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Lawmakers Say DOJ Rejection Of Trump Immunity Too Narrow


March 27, 2023

Federal lawmakers and police officers seeking to hold former President Donald Trump responsible for inciting the deadly Jan. 6 insurrection at the U.S. Capitol have told the D.C. Circuit that the U.S. Department of Justice’s suggested ruling in the case would be too narrow.

Eleven members of the U.S. House of Representatives and two U.S. Capitol Police officers have criticized the DOJ’s amicus brief filed earlier this month, in which the department encouraged the appellate court to issue a ruling that only applies to Trump’s immunity related to a trio of lawsuits accusing him of inciting the insurrection during his speech at the Ellipse near the White House earlier in the day.

Such a ruling would be too narrow, the lawmakers and police officers contended in a March 23 brief, and it would replace a standard established by the U.S. Supreme Court more than 50 years ago with “an amorphous, malleable appeal to the ever-evolving traditions of the presidency.”

Instead, the D.C. Circuit should issue a ruling establishing that an action taken by a president that isn’t tied to a constitutional or statutory responsibility, and that encourages the obstruction of another branch’s duties, is not covered by the president’s broad immunity.

“Urging private citizens to use any means that obstruct Congress from carrying out its constitutional duty to certify a presidential election — a procedure the framers expressly placed beyond presidential reach — bears no connection to any presidential responsibility,” the lawmakers and police officers said.

. . .

The plaintiffs are represented by Joseph M. Sellers, Brian Corman and Alison S. Deich of Cohen Milstein Sellers & Toll PLLC, Janette McCarthy-Wallace, Anthony P. Ashton and Anna Kathryn Barnes of the NAACP, Robert B. McDuff of the Mississippi Center for Justice, Patrick A. Malone, Daniel Scialpi and Heather J. Kelly of Patrick Malone & Associates PC, Philip Andonian and Joseph Caleb of Caleb Andonian PLLC, Matthew Kaiser and Sarah R. Fink of KaiserDillon PLLC, Donald B. Verrilli Jr., Ginger D. Anders, Elaine J. Goldberg and Sarah E. Weiner of Munger Tolles & Olson LLP, and Cameron Kistler, Erica Newland, Kristy L. Parker, Jacek Pruski, Anne Tindall, John Paredes, Genevieve C. Nadeau, Benjamin L. Berwick and Helen E. White of United to Protect Democracy.

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