The Volokh Conspiracy
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Presidential Immunity Does Not Bar Suits Against Trump for His Conduct on January 6
The U.S. Court of Appeals for the D.C. Circuit rejected the former President's attempt to claim presidential immunity covered his conduct on January 6.
On December 1, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously rejected Donald Trump's attempt to dismiss multiple suits filed against him for his conduct on January 6 on grounds of presidential immunity. Specifically, the Court in Blassingame v. Trump affirmed the district court decision denying Donald Trump's motion to dismiss various federal and D.C. law-based claims filed against him seeking recovery for physical damages and emotional distress allegedly caused by his incitement of the riot at the Capitol.
The opinion for the panel, by Chief Judge Sri Srinivasan, is a careful and reasoned exploration of the law of presidential immunity. It is also quite narrow, in that it does not determine whether the claims filed agaisnt Trump will or can ultimately succeed. Judge Greg Katsas joined the opinon in full, and Judge Judith Rogers concurred in part.
Judge Srinivasan's introduction, which begins after the jump, nicely summarizes the law of presidential immunity and describes the "objective" text for whether a President's conduct -- and, in this case, his speech -- is cloaked with immunity. This approach strikes as quite sound, and directly in line with the few Supreme Court precedents to bear on this question. (And for those who care about such things, was joined in full by an Obama and Trump nominee, and in part by a Clinton nominee.)
The opinion begins:
Since the Supreme Court's decision in Nixon v. Fitzgerald, 457 U.S. 731 (1982), Presidents have carried out their official responsibilities free from any exposure to civil damages liability. Nixon established a President's absolute immunity from civil damages claims predicated on his official acts. The object of a President's official-act immunity is to assure that he can fearlessly and impartially discharge the singularly weighty duties of the office.
The President, though, does not spend every minute of every day exercising official responsibilities. And when he acts outside the functions of his office, he does not continue to enjoy immunity from damages liability just because he happens to be the President. Rather, as the Supreme Court made clear in Clinton v. Jones, 520 U.S. 681 (1997), a President's official-act immunity by nature does not extend to his unofficial actions. When he acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.
This appeal calls for us to apply those key decisional precedents on presidential immunity to a decidedly unprecedented event involving the presidency: the riot at the Capitol on January 6, 2021, just as Congress convened to tabulate the Electoral College vote and declare the person elected President. The plaintiffs in the cases before us are Capitol Police officers and members of Congress who were at the Capitol that day. They seek civil damages for harms they allege they suffered arising from the riot. Although they sue various persons, the sole defendant named in all the cases consolidated before us is former President Donald J. Trump.
The plaintiffs contend that, during President Trump's final months in office, he conspired with political allies and supporters to obtain a second term despite his defeat in the 2020 election. He allegedly advanced that cause before January 6 by repeatedly making false claims that the election might be (and then had been) stolen, filing meritless lawsuits challenging the election results, and pressuring state and local officials to reverse the election outcomes in their jurisdictions. Those efforts allegedly culminated in the 75-minute speech President Trump delivered at the rally on January 6. According to the plaintiffs, President Trump's actions, including ultimately his speech on January 6, sparked the ensuing riot at the Capitol.
President Trump moved in the district court to dismiss the claims against him, including on grounds of a President's official-act immunity from damages liability. The district court largely rejected his claim of immunity, and President Trump now appeals. The sole issue before us is whether President Trump has demonstrated an entitlement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints.
We answer no, at least at this stage of the proceedings. When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act. 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. So, when a sitting President running for a second term attends a private fundraiser for his re-election effort, hires (or fires) his campaign staff, cuts a political ad supporting his candidacy, or speaks at a campaign rally funded and organized by his re-election campaign committee, he is not carrying out the official duties of the presidency. He is acting as office-seeker, not office-holder—no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office.
President Trump himself recognized that he engaged in his campaign to win re-election—including his post-election efforts to alter the declared results in his favor—in his personal capacity as presidential candidate, not in his official capacity as sitting President. That is evident in his effort to intervene in the Supreme Court's consideration of a post-election lawsuit challenging the administration of the election in various battleground states. He expressly filed his motion in the Supreme Court "in his personal capacity as candidate for re-election to the office of President" rather than in his official capacity as sitting President. Trump Mot. to Intervene 3, Texas v. Pennsylvania, No. 22O155 (U.S. 2020). And he grounded his claimed right to intervene in the case in his "unique and substantial personal interests as a candidate for re-election to the Office of President" rather than in any official interest in exercising the office's duties. Id. at 24.
In arguing that he is entitled to official-act immunity in the cases before us, President Trump does not dispute that he engaged in his alleged actions up to and on January 6 in his capacity as a candidate. But he thinks that does not matter. Rather, in his view, a President's speech on matters of public concern is invariably an official function, and he was engaged in that function when he spoke at the January 6 rally and in the leadup to that day. We cannot accept that rationale. While Presidents are often exercising official responsibilities when they speak on matters of public concern, that is not always the case. When a sitting President running for re-election speaks in a campaign ad or in accepting his political party's nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity.
While we thus reject President Trump's argument for official-act immunity at this stage, that result is necessarily tied to the need to assume the truth of the plaintiffs' factual allegations at this point in the proceedings. President Trump has not had a chance to counter those allegations with facts of his own. When these cases move forward in the district court, he must be afforded the opportunity to develop his own facts on the immunity question if he desires to show that he took the actions alleged in the complaints in his official capacity as President rather than in his unofficial capacity as a candidate. At the appropriate time, he can move for summary judgment on his claim of official-act immunity.
Because our decision is not necessarily even the final word on the issue of presidential immunity, we of course express no view on the ultimate merits of the claims against President Trump. Nor do we have any occasion to address his other defenses, including his claim that his alleged actions fall within the protections of the First Amendment because they did not amount to incitement of imminent lawless action: he did not seek appellate review at this time of the district court's denial of his First Amendment defense, but he could bring that issue before us in the future. We also do not opine on whether executive or other privileges might shield certain evidence from discovery or use as the litigation proceeds. Nor does our decision on a President's official-act immunity from damages liability in a civil suit treat with whether or when a President might be immune from criminal prosecution.
Instead, we hold only that, taking the allegations in the plaintiffs' complaints as true as we must at this point in the proceedings, President Trump has not demonstrated an entitlement to dismissal of the claims against him based on a President's official-act immunity. In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the runup to and on January 6 were taken in his official capacity as President rather than in his unofficial capacity as presidential candidate.
Judge Katsas concurred separately, stressing the narrowness of the court's decision and the flexibility of the court's test.
The immunity question . . . turns on whether President Trump made the January 6 speech in an official or private capacity.
Today, we do not definitively resolve that question. Instead, we hold only that we cannot resolve it on a motion to dismiss. Our conclusion rests on two propositions persuasively established by Chief Judge Srinivasan's lead opinion. First, in certain limited contexts, courts may reliably conclude that a sitting President is speaking only in a private capacity as a candidate for re-election or as the leader of a political party. These include instances where the President speaks at a party convention, in a presidential debate, in a political advertisement, at a campaign rally, or at a party fundraiser. Second, the operative complaints plausibly allege that the January 6 speech involved this kind of purely private campaign speech. In particular, the complaints allege that the January 6 rally was organized by campaign staff and funded by private donors, and was neither facilitated by White House staff nor paid for with congressionally appropriated funds. Given those allegations, which remain to be tested on summary judgment or at trial, we cannot resolve the immunity question in President Trump's favor at this stage of the case.
As both opinions note, whether a President is a immune does not depend upon the President's intent or the political significance of a president's actions or remarks. Rather it is based upon an "objective" inquiry into the context of the President's speech. Further, the Court rejected both the broad claims of presidential immunity asserted by former President Trump, as well as the unduly stingy tests offered by the plaintiffs and the federal government.
Judge Rogers wrote separately, concurring only in part, on the grounds that she thought the opinion extended beyond what was necessary to affirm the district court's denial of the motion to dismiss.
