President-elect Donald Trump’s electoral victory and its legal aftermath placed an asterisk next to the expression: “No one is above the law.” In the wake of the dismissal of his federal election subversion and classified documents cases, the public and Trump himself will almost certainly never see how jurors would have decided whether he was guilty of the federal crimes charged. That makes the proposition that presidents are not above criminal law dubious at best. 

The same does not necessarily hold true for ongoing civil suits or for jurors in those cases who may sit in judgment of President Trump for his efforts to overturn the 2020 election. Indeed, the Supreme Court has long held that a sitting president may be subject to civil lawsuits while in office, and Trump is the defendant in several civil cases alleging wrongdoing for trying to deprive citizens of their votes and for the Capitol riot. Civil lawsuits do not risk imprisonment, but they could result in significant financial awards and in establishing an authoritative record of the events on and around Jan. 6.

Unlike criminal cases, the Jan. 6-related civil lawsuits operate outside the reach of Trump’s pardon power or the Justice Department’s jurisdiction (with one caveat, which we discuss below).*

A Reckoning on “Incitement” 

The president-elect is named as a defendant in at least five lawsuits involving Jan. 6th. D.C. District Court Judge Amit Mehta consolidated four of those cases, and D.C. District Court Judge Tanya Chutkan is presiding separately over another.

Among the first four, Rep. Bennie Thompson of Mississippi fired the opening volley. Then, Rep. Barbara Lee of California took over as lead plaintiff after Thompson withdrew from the case, in order to chair the House Select Committee Investigating the Jan. 6 Attacks. Other than Trump, the remaining co-defendants in this case include the Proud Boys and the Oath Keepers, far-right paramilitary organizations, and Proud Boys leader Enrique Tarrio. Rep. Eric Swalwell of California compounded Trump’s possible liabilities by filing a similar lawsuit. The former president’s son Donald Trump Jr., Rep. Mo Brooks, and Rudy Giuliani were dismissed as defendants from both of the lawmaker-led cases.

Two groups of U.S. Capitol Police officers followed, blaming their injuries on Trump. Officer James Blassingame, then a 17-year veteran of the force and a Black man, filed the first of these police-led lawsuits, which described the racist abuse, violence and trauma that he suffered holding back the mob from the Capitol. Blassingame’s lawsuit named Trump as the sole defendant. Officer Conrad Smith, who is also Black, led a group of seven plaintiffs in a related lawsuit, which also sued Trump campaign entities, paramilitary organizations and their members, and other individuals as defendants. Though the lawsuits’ claims and the defendants vary, Trump broadly stands accused of neglect, conspiring to interfere with civil rights, and violating the Ku Klux Klan Act, a Reconstruction-era law originally drafted to deter white supremacist groups from interfering with the civil rights of freed slaves. In 2022, Judge Mehta refused to dismiss the first four cases, in a ruling that went farther than even Trump’s criminal cases in holding him directly responsible for the violent assault on the U.S. Capitol.

In Trump’s federal election subversion indictment, Special Counsel Jack Smith sidestepped potentially thorny First Amendment issues by refraining from alleging that the then-president incited the Jan. 6 insurrection. Instead, Smith leveled four charges that focused more narrowly on Trump’s multi-state false electors scheme and the pressure campaign on Vice President Mike Pence to count those fraudulent electoral votes: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstructing an official proceeding, and violating a Reconstruction-era civil rights law, drafted originally to protect formerly enslaved people through criminal sanction. The consolidated civil cases against Trump, by contrast, directly accused the former president of inciting the violent mob to descend upon congressional certification of Joe Biden’s electoral victory, and Judge Mehta found those claims plausible.

“Having considered the President’s January 6 Rally Speech in its entirety and in context, the court concludes that the President’s statements that, ‘[W]e fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,’ and ‘[W]e’re going to try to and give [weak Republicans] the kind of pride and boldness that they need to take back our country,’ immediately before exhorting rally-goers to ‘walk down Pennsylvania Avenue,’ are plausibly words of incitement not protected by the First Amendment,” Mehta wrote in 112-page opinion. “It is plausible that those words were implicitly ‘directed to inciting or producing imminent lawless action and [were] likely to produce such action.’”

In making that finding, Mehta had quoted the Supreme Court’s strict test for incitement in the landmark case of Brandenberg v. Ohio — that is, a finding that Trump intended his rally speech to provoke “imminent lawless action.” In his defense, Trump and his supporters have focused on his disclaimer that rallygoers should “peacefully and patriotically make [their] voices heard,” but Mehta found that Trump’s “passing reference” to a more peaceful approach did not “inoculate” from liability alleged incitement in the same speech nearly an hour later. The Brandenberg test remains a demanding one, and Trump will be able to raise his First Amendment defenses again on a motion for summary judgment — and eventually, perhaps, to a federal jury and appellate courts. 

[Editor’s note: Readers may also be interested in Tom Joscelyn, Norman L. Eisen and Fred Wertheimer, Dissecting Trump’s “Peacefully and Patriotically” Defense of the January 6th Attack (Feb. 8, 2024)]

The Standout Jan. 6 Civil Case

On a separate track inside the same courthouse, Judge Chutkan has been hearing the civil case that’s most similar to the criminal case over which she formerly presided: Michigan Welfare Rights Organization v. Trump. Civil rights groups and voters first filed that lawsuit long before the Jan. 6 attack on the U.S. Capitol, but shortly after Trump started his effort to invalidate the 2020 election results. The original complaint accused Trump of violating the Voting Rights Act through a conspiracy targeting areas with large Black populations with bogus fraud claims, particularly in Detroit, Michigan. The NAACP later joined an amended version of that lawsuit, which broadened the focus nationally and also included a claim under the KKK Act. The named defendants also include the Trump 2020 presidential campaign and the Republican National Committee.

Like the four consolidated cases, Michigan Welfare Rights Organization alleges that Trump incited the attack on the U.S. Capitol, but it also alleges a violation of the Voting Rights Act that shows the attack’s pre-Jan. 6 origins. In 2023, attorneys for the plaintiffs emphasized that their lawsuit involved more than speech, including “coercive actions to block vote counting in tightly contested states, threatening state and local election officials to prevent certifying election results, and baselessly challenging the validity of legally cast ballots.” Trump’s legal team argued that this was First Amendment-protected activity.

Next steps

Chutkan has not yet ruled on Trump and his co-defendants’ pending motions to dismiss the most recent complaint, and as a result, this case may be the farthest away from a trial. But Chutkan, in Trump’s criminal case, and Mehta, in Oath Keepers-related criminal cases, have worked quickly, and they likely will continue to maintain a speedy docket in the civil cases, buoyed by the substantial experience and familiarity that they have accrued about the facts and legal issues related to the litigation. 

The civil cases could get more wind in their sails or turbulence soon in the form of Special Counsel Jack Smith’s final report on Trump’s criminal cases, which will explain both his charging and declination decisions. Throughout the Jan. 6 criminal investigations, evidence has emerged about the roles groups like the Oath Keepers and Proud Boys played in the riots — and their ties to Trump and his associates. Prosecutors did not accuse Trump of conspiring with these paramilitary groups to attack the U.S. Capitol, conduct that would amount to a criminal conspiracy, not protected speech. The civil cases, however, do include an element of that conspiracy. Smith’s report may show whether prosecutors did not make that allegation because evidence of such a conspiracy did not exist, or alternatively, whether they believed they could not prove such collusion beyond a reasonable doubt. That distinction could prove crucial in a civil case, in which the burden of proof is the lower standard of preponderance of the evidence. The same implications may arise in how Smith’s report addresses why he declined to charge Trump with incitement – with the reasoning favoring one party in the civil litigation or the other. 

During the Oath Keepers’ criminal trials, prosecutors showed that the group’s leader Stewart Rhodes tried to communicate with Trump through an intermediary, a U.S. military veteran named Jason Alpers, at a meeting at a garage in Texas. Rhodes, in a recorded conversation, tried to persuade Alpers to convince Trump to invoke the Insurrection Act in the effort to overturn Biden’s victory. Alpers, who later cooperated with prosecutors, testified that he never passed on the message to Trump. Evidence also showed that the Oath Keepers and Proud Boys both had extensive ties to Trump loyalist Roger Stone, who adamantly denied any role in the attack on the U.S. Capitol. Stone has never been charged or publicly identified by Smith with any role in Trump’s attempted subversion of the 2020 election. One of the Capitol police-led civil lawsuits includes Stone, among several others, as a named defendant. 

Attorneys for Trump and the plaintiffs did not respond to emails requesting comment.

The Immunity Question

At first glance, any civil immunity Trump could hope for may be narrow. On Dec. 1, 2023, a three-judge panel from the D.C. Circuit Court of Appeals ruled that Trump could be sued for allegedly inciting the attack on the Capitol, as long as he engaged in that incitement in his private capacity as an office-seeking candidate rather than in his official capacity as an office-holding president.  

As U.S. Circuit Judge Sri Srinivasan wrote, “[w]hen a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act.” Srinivasan explained,  “The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office.”

The D.C. Circuit expressed no opinion about whether Trump’s speech on the Ellipse on the morning of January 6, 2021 was official under its test. But the panel rejected Trump’s maximalist view of his immunity, and the Supreme Court’s majority in Trump v. U.S. approvingly cited the D.C. Circuit’s test for civil immunity in fashioning the high court’s own criminal immunity for some of Trump’s conduct. In light of these previous opinions, the ground for advancing the lawsuits against Trump, for now, appears firm. 

Even here, however, Trump has some levers to pull from the presidency. Trump’s Department of Justice may attempt to intervene on his behalf on the grounds of Westfall Act immunity, a maneuver that would substitute the United States federal government for him as a defendant in cases involving the president’s official acts in office. The Justice Department took this position in E. Jean Carroll’s first defamation lawsuit, which held Trump liable for his insulting comments about her at a press conference. The DOJ argued that the president’s duty includes responding to allegations against him to the press, but Judge Lewis Kaplan rejected Trump’s immunity claims, setting off litigation in three courts about what counts as official conduct. 

If Trump’s DOJ were to make a similar argument about his alleged 2020 election subversion, it would be a startling reversal. The Justice Department has previously taken the opposite position in relation to Trump’s criminal cases in multiple venues, and there is no guarantee that a court would accept it. The DOJ declined to assert that Rep. Brooks, a Trump loyalist, was entitled to Westfall Act immunity for his own speech at the Ellipse rally, and Brooks was dismissed as a co-defendant in Jan. 6-related civil cases on other grounds. Even if Trump succeeded in substituting the U.S. government for himself as a party, the cases could proceed in court without personal liability for himself, but merely litigating the issue would help succeed in a time-honored playbook for Trump avoiding liabilities: delay.

The 235-Year History of ‘No Man Is Above the Law’—and Its Dismantling 

These Jan. 6-related civil cases could provide a test for what levers of accountability still remain for a U.S. president, more than 235 years after the ratification of the U.S. Constitution. 

In 1787, in a speech to the Pennsylvania Convention, one of the Constitution’s framers, James Wilson, emphasized his view of what would distinguish the President of the United States from the recently overthrown British king: “[F]ar from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.” In every century that followed, the Supreme Court echoed those words, in rhetoric if not in practice. In 1882, the Supreme Court expressed the concept this way in United States v. Lee, a case involving the heir of Confederate general Robert E. Lee’s wife: “No man in this country is so high that he is above the law.” In 1997, then-Justice John Paul Stevens quoted Wilson’s words in Clinton v. Jones, establishing that a sitting president is not immune from civil liability for private conduct. 

The Supreme Court’s unanimous decision resoundingly affirmed that then-President Bill Clinton could not avoid the sexual harassment civil lawsuit filed by Paula Jones, simply because he was then in the White House. 

The Supreme Court’s precedent in Clinton v. Jones proved pivotal for allowing major lawsuits filed against Trump during his first term to proceed, including the dual ones leading to writer E. Jean Carroll’s sexual abuse and defamation judgments totaling $88.3 million. Those awards remain on appeal, and they will likely be adjudicated during Trump’s second term.

Why the 2020 Election Interference Civil Cases Matter

Over the past two centuries, statements of presidential accountability to U.S. laws have gone from credible to doubtful. 

At its high water mark, the Supreme Court’s landmark opinion in United States v. Nixon released the tapes that sank a presidency, but the post-Watergate era brought new precedents narrowing the circumstances under which a president could be held liable. In 1982, Nixon v. Fitzgerald granted presidents official immunity in civil litigation for conduct at the “outer perimeter” of their official acts, and the majority opinion of the 5-4 court somewhat defensively insisted that this carve-out “will not place the President ‘above the law.’” In 2024, Trump v. United States established an elaborate test for determining whether a president is immune from criminal prosecution for conduct deemed to be an official act, and Justice Sonia Sotomayor’s dissenting opinion argued that the majority set the bar for prosecution so high as to be “illusory.” 

In both of these decisions, the lead authors — Justice Lewis F. Powell Jr. and Chief Justice John Roberts — emphatically denied in their opinions that they had placed the president “above the law.” In practice, the viability of holding a former president liable for acts while in office, in the wake of these justices’ decisions, appears to be theoretical. Trump’s federal criminal cases are now dead. (We shall see what becomes of the state cases in New York and Georgia but their trajectory is unclear at best.) 

As a result, the civil cases will now head to center stage. The cases could ultimately pile more onto the over half a billion dollars in liability that Trump now faces (including the NY Attorney General Letitia James’s civil fraud case), if Trump does not manage to overturn his civil judgments on appeal. 

Perhaps more important is the historical record. Trump has promised to create a revisionist history of the 2020 election in his second term. On Nov. 22, the Washington Post reported that Trump plans to use the Justice Department to advance his hunt for fraud in the 2020 election, allegations of which were rejected by dozens of courts, by the highest-ranking officials of his former administration, by every state election authority, and by contractors paid by his campaign. His latest nominee for attorney general, his ex-impeachment lawyer Pam Bondi, helped spread his baseless fraud claims in Pennsylvania. So did his former nominee for that position, and his current nominee for FBI Director, Kash Patel, also reportedly promoted lies about election fraud while serving in the Pentagon and has publicly echoed those false claims since. 

If Trump uses the machinery of government to revive his 2020 election conspiracy theories — and all indications suggest that he will — the remaining civil cases could prove to be more than a financial headache for him. They might be an authoritative contemporary reaffirmation of the record, one that countersTrump’s attempt to rewrite history by offering a courtroom-based narrative of what he actually did—one tested by a jury and judges instead of loyalists inside the administration.

IMAGE: The E. Barrett Prettyman US Courthouse in Washington, DC on August 5, 2023. A date for the trial of former US President Donald Trump on charges of conspiring to overturn the 2020 election, which is to be held in Washington, is to be set at an August 28 hearing at the courthouse before US District Court Judge Tanya Chutkan. (Photo by MANDEL NGAN/AFP via Getty Images)