Bid to hold Trump accountable for Jan. 6 violence stalls at appeals court
The long-awaited D.C. Circuit ruling in a trio of civil lawsuits could influence Trump’s criminal cases as well.
By KYLE CHENEY and JOSH GERSTEIN.1/2
11/27/2023 07:23 PM EST
A federal appeals court mulling Donald Trump’s legal liability for Jan. 6 violence is approaching a conspicuous anniversary of inaction.
Nearly a year ago, the court considered three lawsuits brought by Capitol Police officers and members of Congress accusing Trump and his allies of inciting the attack that threatened their lives and the government they were sworn to protect.
But their efforts to hold Trump accountable have languished. The D.C. Circuit Court of Appeals typically decides cases within four months of oral arguments, but the trio of Trump lawsuits has been sitting on the court’s docket with no ruling since they were argued last December.
“I am surprised how long it’s taking. The delay does seem unusual, but I’m hopeful we’ll get a decision,” said Rep. Eric Swalwell (D-Calif.), who filed one of the three lawsuits two months after the Jan. 6 attack.
A three-judge panel of the appeals court is mulling a thorny constitutional question that hangs over each of the cases: whether Trump can be sued over his speech to an angry crowd on Jan. 6, 2021, just before the deadly riot at the Capitol. Since the panel considered whether Trump has immunity, Trump has surged to the front of the GOP presidential primary pack and been charged criminally twice for his efforts to subvert the 2020 election.
The D.C. Circuit’s long-awaited ruling — or its likely appeal to the Supreme Court — may either bolster or weaken both of those criminal cases. That’s because Trump is raising similar immunity defenses in his criminal prosecutions. Whatever the higher courts say about the scope of presidential immunity in the civil context will set an important precedent for the trial judges who will soon need to resolve Trump’s efforts to toss out his criminal charges on immunity grounds.
In the meantime, the protracted delay at the D.C. Circuit has created something of a vacuum on the question of how broadly Trump’s immunity sweeps.
“It seems like it’s extraordinarily long, even for the D.C. Circuit,” said University of Richmond law professor Carl Tobias.
Tobias noted that the D.C.-based court tends to take longer than most other federal appeals courts, generally because it handles a significant number of very complicated regulatory cases involving federal agencies. Still, the Trump immunity appeal seems like an outlier, he said.
“It’s certainly on the very long end of that, so you have to wonder,” the law professor added.
Statistics released by the Administrative Office of the U.S. Courtsconfirm that the Trump appeal has been awaiting a decision for almost three times as long as the typical D.C. Circuit case.
The hold-up has even been remarked upon in Trump-related cases outside Washington, like a pair of lawsuits in New York related to writer E. Jean Carroll’s claim that Trump raped her in a department store dressing room in the 1990s and Trump’s disparaging comments about Carroll after she went public with her claim.
In those cases, too, Trump has raised immunity defenses. And last month, while arguing before a New York-based federal appeals court, a lawyer for Carroll pointed out that the D.C. Circuit appeal “has been pending for quite some time.”
The full legal odyssey for the Jan. 6-related lawsuits against Trump has now reached nearly three years. Within weeks of the attack on the Capitol, members of Congress, Capitol Police officers and members of the D.C. police department began filing the lawsuits, claiming that Trump and his allies bore responsibility for the violence and should pay monetary damages.
U.S. District Court Judge Amit Mehta issued his own landmark ruling on the matter on Feb. 18, 2022, concluding that Trump’s speech that day was a rare instance in which a president’s remarks were not immune from lawsuit.
“To deny a President immunity from civil damages is no small step,” wrote Mehta, an appointee of President Barack Obama. “The court well understands the gravity of its decision. But the alleged facts of this case are without precedent, and the court believes that its decision is consistent with the purposes behind such immunity.”
Trump appealed quickly, and the case has been meandering through the appeals court ever since. The three-judge panel, consisting of Obama-appointed Chief Judge Sri Srinivasan, Clinton appointee Judith Rogers and Trump appointee Gregory Katsas, heard oral arguments in the case on Dec. 7, 2022. Four months later, in March 2023, they solicited input from the Justice Department, which staked out a delicate approach to questions of presidential immunity….
https://www.politico.com/news/2023/11/27/trump-immunity-appeal-00128786