Constitutional scholars and lawyers on cases against Mr Trump told Reuters they believe the Biden administration has paved the way for the DOJ to defend the former president by arguing in an unrelated defamation case against Mr Trump that US leaders should have immunity for their comments while in office and should have the right to be defended by government lawyers.
The DOJ surprised many by taking that stance earlier this month, with the department deciding to keep defending Mr Trump in a case filed by E Jean Carroll, who accused the former president of raping her 25 years ago and then lying about it during his time in office and defaming her.
The DOJ had said in a brief that while Mr Trump’s comments were “without question unnecessary and inappropriate”, the department said he had been acting within his rights by addressing allegations against him.
“Elected officials can – and often must – address allegations that inspire doubt about their suitability for office,” the argument said. “Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.”
Speaking with Reuters, Philip Andonian, an attorney in a separate case against Mr Trump, said he believes the Justice Department could decide to defend the former president in future cases based on the same rationale.
Among those cases are one filed by two US Capitol Police officers who have blamed Mr Trump for injuries they suffered during the 6 January siege on the US Capitol Building, which left five people dead.
Mr Andonian said he also believed that rationale could be used in a case he is pursuing against Mr Trump on behalf of Democratic California Rep Eric Swalwell, who has accused the president of inciting the deadly riot in a bid to prevent the certification of Mr Biden’s 2020 election victory.
The Justice Department declined to comment to Reuters on whether it would use the same argument to get involved in other lawsuits against Mr Trump.
The Independent has also contacted the DOJ for comment.
The White House has previously said that it has no role in the DOJ’s decisions on whether to defend Mr Trump in such cases.
The former president currently faces more than a dozen active investigations and lawsuits, including sexual misconduct allegations and government investigations into his efforts to overturn the 2020 election.
The DOJ’s decision this month, however, could only apply to cases involving Mr Trump’s comments or actions during his time in office.
Laurence Tribe, a constitutional law professor at Harvard University and an outspoken critic of Mr Trump, told Reuters “it would be very difficult for the Justice Department to change course now”.
“The Titanic is aimed at the iceberg,” he said.
Still, the Harvard professor, who served as a legal adviser for the House of Representatives’ second impeachment of Mr Trump, said it would be “outrageous” for the DOJ to defend the former president in lawsuits related to the Capitol insurrection “on the basis that fomenting a violent insurrection, as charged in those suits, fell within the president’s job description”.
Mr Trump has denied being responsible for inciting violence at the US Capitol Building.
His lawyers have maintained that he did not incite people to violence, but made political statements protected by the First Amendment.
Additional reporting by Reuters.