Justice Department backs Trump in lawsuit fight over 2020 racial injustice protests, finding he was acting in ‘official’ capacity

U.S. President Donald Trump holds up a Bible outside of St. John’s Episcopal church across Lafayette Park in Washington, D.C. on June 1, 2020 (BRENDAN SMIALOWSKI/AFP via Getty Images).

Should Donald Trump ultimately be found culpable for violating the rights of protesters who say they were unconstitutionally removed from Lafayette Park during the racial justice protests in 2020, the U.S. Justice Department appears to have agreed to assume liability for the former president because he was “acting within the scope of federal office” at the time.

The disclosure was made in a 1-page notice filed by James Touhey Jr., director of the Justice Department’s Torts Branch Civil Division, and it was reported first by Politico.

“On the basis of the information now available with respect to the claims set forth therein, I find that Donald J. Trump was acting within the scope of federal office or employment at the time of the incident out of which the plaintiffs’ claims arise,” Touhey Jr. wrote.

That notice followed a motion from prosecutors at the Justice Department to dismiss a 2020 civil lawsuit brought against Trump by a group of Washington, D.C., resident plaintiffs in the case of Buchanan v. Trump. As Law&Crime reported, the plaintiffs are suing Donald Trump, former Attorney General William Barr, former Defense Secretary Mark Esper, then-D. C. National Guard Commanding General William Walker, then-U. S. Park Police Acting Chief Gregory Monahan, and former Secret Service Director James Murray for actions taken by law enforcement on June 1 to remove protesters.

They claim their First, Fourth and Fifth Amendment rights were violated when they were violently swept from Lafayette Park by police at the defendants’ direction while they were peacefully protesting the police killing of George Floyd in Minneapolis. Police deployed tear gas, pepper spray and rubber bullets on protesters moments before Trump walked through the square and posed with a Bible in front of St. John’s Episcopal Church.

While the optics of the Biden Justice Department backing former President Donald Trump may be unsavory for some, prosecutors are left with little option given the Supreme Court’s sweeping immunity ruling in July which found that former presidents cannot be prosecuted for acts done under color of their “official” duties.

In the civil lawsuit brought by the plaintiffs, they originally named Trump in his official capacity only. As Law&Crime previously noted, the plaintiffs received permission to amend their complaint and sue Trump in his personal capacity.

In 2021, the Interior Department’s then-inspector general said there was no evidence that police cracked down on protesters violently so Trump could stage a photo op.

Notably, as Law&Crime reported, a report was released early on July 31 that amounted to a final review of the Justice Department’s own role in quelling the protests at Lafayette Park on June 1, 2020. The internal report found Trump administration Attorney General Bill Barr did not personally order protesters removed from the park despite DOJ’s own claim at the time that he did.