The Justice Department made an unusual effort on Thursday to short-circuit a series of civil lawsuits seeking to hold President Trump accountable for his supporters’ attack on the Capitol on Jan. 6, 2021.
Department lawyers argued in court papers filed to the judge overseeing the cases that Mr. Trump was acting in his official capacity as president on Jan. 6 and so the federal government itself should take his place as the defendant. That move, if successful, could protect Mr. Trump from having to face judgment for his role in the Capitol attack and from having to pay financial damages if he were found liable.
The legal maneuver appeared to be Mr. Trump’s latest effort to use the powers of the Justice Department to his advantage by effectively having himself removed from the lawsuits, which were brought against him by groups of Capitol Police officers and lawmakers who claim they were injured when the mob stormed the building.
The suits are the last remaining effort to hold Mr. Trump responsible for his role in the Capitol attack after two Jan. 6-related criminal cases against him collapsed last year.
The department’s attempt to place the federal government itself in the lawsuits’ line of fire instead of Mr. Trump hinges on whether lawyers can persuade the federal judge overseeing the suits, Amit P. Mehta, that Mr. Trump was in fact acting in his official capacity as president on Jan. 6.
The department has argued that under the law federal officials acting within the scope of their office or employment cannot be sued personally, and that in such instances the government is the only entity that can be targeted.
But whether Mr. Trump was acting on Jan. 6 in his official role as an officeholder — and not in his unofficial role as a candidate in the 2020 election — is an open question. Judge Mehta is already considering a separate motion by Mr. Trump’s lawyers to dismiss the lawsuits altogether on the grounds that he was acting in his formal role as president.
Three years ago in an earlier round of motions, Judge Mehta rejected those same claims, saying that the lawsuits could move forward to trial. The following year, a federal appeals court largely agreed with him but said there needed to be more fact-finding about whether Mr. Trump’s speech near the White House on Jan. 6 and several messages he posted on or around that day were presidential acts or the acts of a candidate seeking re-election.
For more than a year, lawyers for both Mr. Trump and the plaintiffs have been digging into that exact issue, and only recently submitted their findings to Judge Mehta. If the judge ultimately finds, in the context of the motion to have the cases thrown out, that Mr. Trump was not performing official duties on Jan. 6, it would throw a significant wrench into the Justice Department’s new effort to get him out of the case.
In September 2020, during the first Trump administration, the department tried a similar move to try to protect Mr. Trump from a defamation lawsuit filed against him by the writer E. Jean Carroll, who accused him of raping her in a Manhattan department store in the 1990s.
When the Biden administration took over, the Justice Department reversed itself. Mr. Trump ultimately went to trial, was found liable for defaming Ms. Carroll and was forced to pay a judgment of more than $80 million.
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