The case for former President Donald Trump’s legal liability for inciting the January 6th insurrection is coming to fruition almost exactly a year after the attack. 

For over five hours, attorneys argued three civil suits brought against Trump by members of Congress and U.S. Capitol police officers to a D.C. federal judge on Monday, Jan. 11, 2021. The suits allege that President Trump played a direct role in inciting the violence – a storm on the Capitol building that killed five and left many more injured. Just prior to the insurrection, Trump gave a speech in which he repeated false election claims and encouraged the crowd to “stop the steal.” Trump’s lawyers, however, insist that his actions fall within the parameters of presidential immunity.

In light of Trump’s defense, the question shifts quickly: what is presidential immunity, and are the former president’s actions protected by it?

Presidential immunity is not a constitutionally protected right. Rather, it is a privilege that has been constructed and is primarily upheld by two Supreme Court decisions.

In the first case that addressed this issue, Nixon v. Fitzgerald, the Court sided with President Nixon and ruled that the president has “absolute immunity from damages liability predicated on his official acts.” Importantly, while Nixon v. Fitzgerald established the idea of presidential immunity, it did not do so without limitations. Only a president’s “official acts” are protected. 

The second case to refine the scope of presidential immunity was Clinton v. Jones, in which a civil suit was brought against President Clinton for sexual misconduct. The Court decided that the civil suit was legal and that the president was not entitled to unlimited, unqualified immunity. Although these allegations dealt with Clinton’s actions prior to his presidency, the case helps to emphasize the limits of presidential immunity. 

Yet, when prompted, Trump’s attorney, Jesse Binnall, “[could not] come up with an example of something the president says as president” that would not be exempt from litigation. This defense seemingly ignores the logic behind the decisions that constructed presidential immunity, which only extend to a president’s official duties in order to prevent interference with his job. In contrast, Trump’s actions had nothing to do with the execution of his job as president and everything to do with a violation of Congress’s constitutional duty to certify the results of the election. 

His comments were certainly not “official acts.” Not only is inciting mob violence nowhere close to any power delegated to the president, but it also clearly infringes on the separation of powers. Of course, this analysis does not address the moral reprehensibility of knowingly provoking an angry mob and endangering lives for personal political gain. 

It may be tempting to view a denial of presidential immunity as a slippery slope. After all, if these cases can be brought against a president, why can’t future lawsuits be used as a political tool to diminish a president’s power? However, blocking these cases is far more dangerous. Preventing these cases from going to trial would send a message that the president can say or do anything – even as far as encouraging the illegal seizure of our democracy – without ramifications. Further, condemning a president for instigating the overthrow of valid election results will not, in any way, hamper the ability of future presidents to perform their duties or diminish their power. Once again, this is not and should not be the role of the president.

Similarly, the alternative position that Trump made the provocative statements as a private citizen and not as the president of the United States does not exempt him from liability. The First Amendment is not without bounds. As Justice Oliver Wendell Holmes wrote in the majority opinion for Schenck v. U.S., shouting “Fire!” in a crowded theater is not protected speech, because it presents a “clear and present danger.” Directing an angry crowd to “walk down Pennsylvania Avenue” to the Capitol to “take back our country” was certainly a real danger – it invited a raid on a democratic institution where lawmakers and government employees were located. On the off-chance that Trump’s intention was not to legitimately incite violence, why, as the federal judge overseeing the case, Judge Amit Mehta, inquired, would a reasonable person wait over an hour after the attack to clarify their intentions? 

Moreover, the claim that Trump was acting as a private citizen negates the need to invoke presidential immunity and invalidates it as a legitimate defense. Obviously, a private citizen is not entitled to presidential immunity. 

Like any power or protection created by the American judicial system, presidential immunity is not infinite or all-encompassing, and the same logic applies to free speech. Whether a president or private citizen, no one has the right to incite a violent attack that not only threatens a democratic institution that represents a pillar of our democracy, but, more importantly, the lives of the individuals within it. 

Image credit: Photo by Pau Casals on Unsplash