The Justice Department on Thursday told a federal appeals court that former President Donald Trump could legally be sued over his conduct on January 6, 2021, which led to the riot at the U.S. Capitol Building. The attempted insurrection left five people dead.

Several Capitol Police officers and members of Congress have sued Trump, citing physical and emotional injuries that they allegedly endured during the riot. Trump has consistently argued that since he was president at the time, he is immune from all civil lawsuits.

While his argument has precedent, given that the president does have lots of leeway to speak on matters of public interest in official settings, the Justice Department officially has dismissed this defense.

“Speaking to the public on matters of public concern is a traditional function of the Presidency, and the outer perimeter of the President’s Office includes a vast realm of such speech,” wrote the Justice Department attorneys. “But that traditional function is one of public communication. It does not include incitement of imminent private violence of the sort the district court found that plaintiffs’ complaints have plausibly alleged here.”

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Specifically, the lawsuits address Trump’s speech directly before the Capitol riot where said, “We fight, we fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.”

A U.S. district court judge ruled in February 2022 that Trump’s speech could be seen as a “call to collective action.”

“President Trump’s January 6 Rally Speech was akin to telling an excited mob that corn-dealers starve the poor in front of the corn-dealer’s home,” said Judge Amit Mehta at the time.

Trump appealed the decision, which led to the DOJ’s new conclusion.

The Justice Department made sure to clarify that it as a federal institution it was not accusing Trump of inciting violence on January 6. Its attorneys stressed that it was only asserting that lawsuits that allege such wrongdoing are legitimate and can legally proceed.

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