In the aftermath of the events of January 6, members of Congress and Capitol Police officers have filed lawsuits against former President Donald J. Trump and others alleging they are liable for the destruction in the Capitol and for personal injuries suffered during the riot. They seek money damages from Trump personally, as well as from other defendants.
Working in collaboration with the Constitutional Accountability Center and a number of professors at other law schools, Professor Andrew Kent, John D. Feerick Research Chair, contributed to three amici curiae briefs supporting the suits.
In response to the lawsuits, Trump and his lawyers filed motions to dismiss, arguing in part that Trump is entitled to absolute presidential immunity from damages liability because he was acting at all times within the scope of his presidential duties in relation to the events leading up to and on January 6.
Rep. Eric Swalwell, a California Democrat on the U.S. Intelligence Committee, has alleged that Trump—as well as Rudy Giuliani, Donald Trump Jr., and Rep. Mo Brooks, an Alabama Republican who voted to overturn the election of President Joe Biden—committed “acts of terrorism” for personal gain and accused them of being “wholly responsible” for the destruction made that day.
Another case that had an amicus brief, Thompson v. Trump, was filed under Homeland Security Committee Chairman Bennie Thompson of Mississippi.
Capitol Police Officers Sidney Hemby and James Blassingame, who sustained physical injuries and verbal abuse on January 6, also filed a lawsuit against Trump for their personal injuries. They are each seeking more than $75,000 in damages from Trump personally.
Absolute Presidential Immunity at Stake
In the amici curiae briefs related to Swalwell v. Trump and Blassingame v. Trump, the Constitutional Accountability Center is representing five law professors whose teaching and research focus on constitutional law, executive immunity, and separation of powers principles—including Professor Andrew Kent.
The group of scholars argue that Trump cannot use presidential immunity in defense of those individual lawsuits that have been filed against him over his actions that incited supporters to protest the electoral votes and that ultimately led to the insurrection. Other involved professors include Evan H. Caminker of the University of Michigan Law School, Sheldon Nahmod of the IIT Chicago-Kent College of Law, Daphna Renan of Harvard Law School, and Peter M. Shane of the Ohio State University Moritz College of Law.
“Our position is that Trump does not have the absolute presidential immunity that the Supreme Court has recognized in other contexts,” Kent explained. “The Constitution is quite clear that the sitting president has absolutely no role in counting the electoral votes.”
“There’s no plausible claim that Trump was doing anything related to his job duties when he was calling for the invalidation of states’ electoral college votes and the overturn of election results,” he continued.
The scholars’ briefs reference the Supreme Court’s rulings in Clinton v. Jones (1997) and Nixon v. Fitzgerald (1982), which have shaped the law on absolute immunity for U.S. presidents from personal liability for money damages. In the amici curiae briefs, the scholars emphasize that in the cases concerning Presidents Nixon and Clinton, the Supreme Court held that absolute immunity applies only to official acts—not to purely personal acts. The purpose of immunity for official acts is to allow presidents to carry out their presidential duties without fear of civil lawsuits. But when the president has no official role in a given area, granting absolute immunity would not serve any useful purpose. The amici curiae briefs argue that President Trump was acting in his private capacity as a candidate for office, not within the scope of presidential duties, when he incited the January 6 insurrection.
President Trump’s motions to dismiss are currently pending in the U.S. District Court for the District of Columbia.