Call for election reforms was ‘culmination’ of Trump’s January 6 speech, DOJ attorney argues in court

By Tierney Sneed, CNN

(CNN) — A top Justice Department attorney argued in court on Friday that President Donald Trump’s inflammatory rally speech before the January 6, 2021, attack on the US Capitol was at least partially aimed at furthering the broader interests of the United States.

At the civil lawsuits hearing that Democratic members of Congress and law enforcement officers brought against the president for his January 6-related conduct, DOJ attorney Brett Shumate said the “culmination” of the speech was to “propose reforms” to election rules. He urged the court to look at the speech as one meant to communicate to the public and to Congress about perceived election fraud, making it part of Trump’s duties as a president.

Shumate, a Trump appointee who leads the Department’s Civil Division, was arguing in favor of a DOJ maneuver that would allow the government to shield Trump from certain claims in the lawsuits. The move would make the US government — rather than Trump — the defendant in the allegations that Trump broke various DC laws, under the theory that Trump’s alleged conduct that day was connected to his employment by the federal government.

The comments also come as the Trump administration has tried to rewrite the narrative about the events of January 6, which left a policeman dead, dozens injured and also led to police killing a protester. The president pardoned hundreds of defendants for their January 6-related offenses.

The intervention by the Justice Department seeking to protect Trump in the civil case comes after federal prosecutors previously argued that his conduct that day was criminal and not subject to immunity. Even in proceedings not against Trump, the administration has tried to sanitize the violence of that day. The department put two DOJ prosecutors on leave who described the Capitol attack as stemming from a “mob of rioters” in a sentencing memo where a January 6 defendant was convicted of crimes not related to the Capitol breach. The sentencing memo was refiled with the language removed.

In the January 6 civil case, Trump’s opponents are arguing his alleged conduct does not meet the criteria for the government to step in for his defense, because his actions that day concerned efforts to stay in the presidency, not his obligations as the office-holder.

Shumate did not dispute that Trump’s Ellipse remarks that day were also aimed at boosting his personal reelection efforts. But he said that as long as a “scintilla” of evidence showed that the speech had a dual purpose that furthered the interests of the United States, the court should look at it as part of Trump’s duties for the government and allow the government to replace him as the defendant.

Ed Caspar, a lawyer for Trump’s opponents who argued against the maneuver, described the speech’s remarks about election reform proposals as “throw away comments.”

Casper pointed to Trump’s actions after his supporters descended violently onto the Capitol, including Trump’s claim, when he finally encouraged the rioters to go home, that they were “special” people whom “we love.”

“There is no way you could conclude those actions were in service of the United States,” Caspar told the judge.

The plaintiffs’ challenge to the department’s substitution maneuver was one of several issues argued. District Judge Amit Mehta also wrestled with the Supreme Court’s sweeping 2024 presidential immunity ruling in the criminal election subversion case brought by former Special Counsel Jack Smith.

Smith ended that case after Trump’s 2024 reelection, as Atlanta prosecutors did in another. That leaves the civil lawsuits in Mehta’s court as the last major legal mechanism for holding Trump accountable for his alleged role in encouraging the mob on Congress.

Mehta ruled in in 2022 that Trump could be held liable, and an appeals court upheld the decision. But the ruling by the DC US Circuit Court of Appeals also said that Trump could continue to bring immunity arguments against specific allegations that stemmed from his official duties as president. The Circuit Court laid out a framework for the trial judge to consider, distinguishing between actions taken by Trump as an office holder versus actions taken as an office seeker. The appeals court told the judge to look at the context around the president’s remarks in order to decide which category applied to the allegations in the case.

Joseph Sellers, a lawyer for Trump’s opponents in the case, argued that the Supreme Court’s immunity ruling in the criminal case a few months later had not disturbed the DC Circuit ruling and its directives for the trial court.

Josh Halpern, a private attorney for Trump, however, stressed that the logic of the DC Circuit opinion in the civil lawsuits had been “undermined” by the Supreme Court’s ruling in the criminal case. Halpern urged the judge to focus primarily on the content of the speech itself, which he described as Trump calling “out election fraud as he saw it.”

He took issue with how the plaintiffs had highlighted the fact the rally was planned by private groups and by individuals who had previously worked for Trump’s campaign, rather than by White House officials. Halpern stressed that a president should not have to worry about those details every time he spoke at an event.

Presidents need immunity so that they can lead “boldly” and “fearlessly,” Halpern argued. He claimed a president would have to behave like a “defense lawyer” who was always worried about litigation, if courts did not embrace a broad view of presidential immunity.

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