No Absolute Immunity for Trump for January 6 Activities

Steven D. Schwinn, University of Illinois Chicago School of Law

Judge Emmet G. Sullivan (D.D.C.) ruled this week that former President Donald Trump does not have absolute immunity from a civil-damage lawsuit for his behavior related to the insurrection on January 6. The ruling came in an order granting the plaintiffs' motion to file a second amended complaint in a lawsuit against Trump and others for interfering with the electoral count. In other words, it's not a final ruling on the merits; it just means that portions of the case against Trump can move forward.

The court held that Trump's activities leading up to and on January 6 in an effort to disrupt the electoral count were not within the "outer perimeter" of his official duties as president, and therefore, under Nixon v. Fitzgerald, he did not enjoy absolute immunity from civil-damage claims based upon those activities. The court held that Trump's activities were political, not official, because they "entirely concern his efforts to remain in office for a second term."

The this is now the third time that the D.C. district held that Trump's January 6-related activities were outside the scope of his official duties. See Thompson v. Trump (also denying absolute immunity) and United States v. Chrestman (rejecting a defense in a criminal case against a January 6 insurrectionist).