The Justice Department filed a briefing Thursday with a reassuring bottom line for those yearning for accountability for Donald Trump. The department concluded that the former president can be sued for damages to the extent his public speech incited imminent private violence in this case, the storming of the US Capitol on January 6, 2021.

It is the same test that the courts have developed to distinguish between First Amendment-protected utterances and criminal or criminal provocations. If upheld by the appeals court, which has sought the opinions of the departments, it would mean plaintiffs, including Capitol police officers and members of Congress, including California representatives. Eric Swalwell and Barbara Lee can sue Trump for damages

in a civil proceeding.

That’s the encouraging news. Under the headline, however, the department offered a hedged and preliminary analysis with the potential to complicate other cases against Trump.

The department’s conclusion is preceded by a series of warnings against holding a president accountable for his conduct in office. The department repeatedly emphasizes the unique complexity of the president’s role in our constitutional system and advises the court that his liability can only be considered with the utmost sensitivity to the complex and unwavering nature of the president’s office and role. It emphasizes the need to protect the president from over-cautious exercise of his official functions.

For these reasons, the department wrote, proper analysis does not revolve around the question of a president’s motives; the court should look only at the objective effect of its conduct. Likewise, the court should not attempt to separate the president as a campaigner from the president as an office holder, a crucial distinction according to the plaintiffs.

All of these qualifications matter because of the factual differences of the department

turned down

could play a vital role in the many civil and criminal cases swirling around the former president.

The DOJ letter includes a footnote disclaiming any opinion about the president’s criminal responsibility.

Yet

the analysis

on the civil liability issue

consequences for attempts to hold the ex-president criminally liable unless the department articulates

explicitly different views on criminal liability.

The DOJ is a highly compartmentalized place, and the assignment shows unmistakable signs of a delicate compromise between the gang that champions a broad view of presidential powers and prosecutors, such as Special Counsel Jack Smith, who want to hold Trump accountable for criminal conduct. the

unanswered

The question is whether the Department of Alleged Criminal Behavior will recommend a different analysis.

Suppose a court adopted the DOJ line that it should not consider a president’s motive when assessing immunity. How would that play out in prosecutions that use evidence of the president’s mental state? An actual prosecution of Trump for forcefully arming, say, the Georgia Secretary of State would necessarily rest on evidence that he had an improper motive to throw out legitimate votes, not some legitimate presidential interest in enforcing voting rights.

And what

about

the DOJ’s advice that the courts should be very careful about distinguishing conduct undertaken as part of a president’s official duties from his conduct as a candidate for re-election? The Trump team’s bogus voter schemes and pressure campaign against Vice President Mike Pence were clearly driven by his unscrupulous campaign to win an election he lost. None of that seems to deserve protection as part of his presidential duties, but the Justice Department suggests that, at least in a civilian context, it’s too hard to draw that line.

Trump’s motives in all of the Jan. 6 schemes, and his status as a candidate scratching and clawing to inappropriately stay in office, are at the heart of what places his behavior far beyond his official duties and makes matters worthy of prosecution.

Perhaps the DOJ will be able to argue that charges of criminal conduct are different because crimes are more clearly outside the president’s responsibilities. But Trump certainly prepares for any counter-charge arguing that he is immune from prosecution.

This week’s briefing avoids taking a position on the criminal issue, but

the day will come when

that question is

unavoidable.

Let’s hope that once forced off the fence, the department will

to take

the only position that squares with

attentive Gen.

Merrick Garland’s insistence that no one is above the law: Trump’s behavior represented the antithesis of his official responsibilities and does not deserve immunity under any plausible standard.

Harry Litman is the host of the

Talking Feds podcast

.

@harrylitman