So far, radical Democrats have jumped at nearly every opportunity to cast blame on former President Donald Trump for the Jan. 6 incursion into the Capitol. But in a new twist, legal experts say President Joe Biden’s Department of Justice may be forced to defend Trump in a lawsuit relating to Jan. 6.
Earlier this month, the Justice Department’s Civil Division acting head Brian Boynton argued in favor of Trump in a lawsuit against him coming from writer E. Jean Carroll. She accused Trump of sexual assault in 2019, but Trump asserted she was “totally lying.”
As a result of Trump’s accusation, Carroll sued him for defamation. In a brief filed on June 7, Boynton said Trump was acting within the scope of his duties as president by responding to the allegations.
“When members of the White House media asked then-President Trump to respond to Ms Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President,” he said.
“Likewise, when Mr. Trump responded to those questions with denials of wrongdoing made through the White House press office or in statements to reporters in the Oval Office and on the White House lawn, he acted within the scope of his office.”
According to Reuters, attorney Philip Andonian fears that defense could have implications on the case he is bringing against Trump on behalf of California Democratic Rep. Eric Swalwell.
Andonian said he found the DOJ’s defense of Trump in the Carroll suit “alarming.” He fears that if the president is immune to legal consequences regarding what he says about matters of public concern, the DOJ may consider Trump immune from his comments on Jan. 6.
This is a hilariously ironic place for Biden’s DOJ to be in. By defending Trump in a weak lawsuit brought by Carroll, the department may have inadvertently forced itself to defend Trump in a Jan. 6 lawsuit, as well.
“It would be very difficult for the Justice Department to change course now,” Harvard constitutional law professor Laurence Tribe said. “The Titanic is aimed at the iceberg.”
Reuters characterized Tribe as “a frequent critic of Trump.” The outlet also reported he served as a legal adviser to House Democrats during their second impeachment trial for Trump.
This makes it even more notable that the professor admitted Biden’s DOJ is in a tough position. If even Trump-haters are saying the DOJ may be forced to defend him, the possibility seems to be more believable.
Other experts feel the DOJ could still argue against Trump in the Jan. 6 lawsuit because the case has key differences from the Carroll suit. Joseph Sellers, an attorney representing Mississippi Democratic Rep. Bennie Thompson in separate lawsuit regarding Jan. 6, said Trump’s actions on that day were outside his responsibilities as president.
“I don’t think anyone would think it’s within the scope of the president’s legitimate duties to encourage people to interfere with the functioning of another branch of government,” Sellers said. “He was promoting an insurrection and a riot.”
There are two main roadblocks Democrats are facing with outstanding lawsuits against Trump for his actions on Jan. 6.
In addition to the possibility that the DOJ will back Trump, there is also a strong chance that prosecutors will be unable to prove Trump’s actions “incited” the Capitol incursion, as Sellers alleged.
In his speech on Jan. 6, Trump told his supporters to “fight like hell” and ensured them he had won the election, according to The Guardian. Those claims may be controversial, but they are far from a direct call for his supporters to riot.
The Guardian also reported the FBI made its disdain for the Jan. 6 incursion clear in a March hearing with the Senate Judiciary Committee.
“That attack, that siege, was criminal behavior, plain and simple, and it’s behavior that we, the FBI, view as domestic terrorism,” FBI director Chris Wray said at the hearing.
Even if the accusation of “domestic terrorism” is true of the people who entered the Capitol, it does not necessarily mean Trump incited their actions.
While it is not a guarantee that the DOJ will back Trump, prosecutors will have the burden of proving “incitement” no matter what. Given the vague nature of the current evidence against Trump, this will be a difficult task.
Some, if not most, of the people who entered the Capitol on Jan. 6 are likely to face punishment of some sort. Yet with each new development, a Trump conviction for the Jan. 6 incursion seems less and less likely.
