No Presidential immunity for Trump in ruling.
Donald Trump can be sued over claims that he incited violence on Jan. 6, 2021, an appeals court ruled Friday, rejecting the former president’s argument that he is entirely immune from being held liable for incendiary remarks that preceded the attack on the Capitol.
The three-judge panel concluded that Trump’s actions as a candidate for president would not automatically be protected by “presidential immunity,” turning aside Trump’s sweeping argument that nearly all speech and conduct by an incumbent president should be shielded from lawsuits, including several brought by members of Congress and injured police officers.
Here’s the PDF and the opinion delivered by Chief Judge SRINIVASAN with bolding and extra comments mine. Repeating the decision which is also at the end here, just to make the point
For the foregoing reasons, we affirm the district court’s denial of President Trump’s motion to dismiss the claims against him on grounds of presidential immunity.
So ordered
SRINIVASAN, Chief Judge: 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 speech4
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 in5
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 of6
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.7
I.
A.
Because this appeal comes to us on the denial in relevant
part of motions to dismiss, we “assume the truth of
the . . . factual allegations” in the complaints. Clinton, 520
U.S. at 685. We also draw from the complaints in all three
cases consolidated before us. And because the sole question
we consider is whether President Trump has shown that he
should have been granted a dismissal of the claims against him
on grounds of presidential immunity, we focus on the
allegations about his actions (rather than those of the other
defendants), and, in particular, on the allegations pertaining to
his entitlement to official-act immunity.
1.
President Trump served in office from January 20, 2017
until January 20, 2021. In 2020, he ran for re-election on the
Republican ticket alongside then-Vice President Michael R.
Pence. They faced the Democratic nominee, then-former Vice
President Joseph R. Biden, Jr., and his running mate, then-
Senator Kamala D. Harris.
According to the complaints, President Trump began
sowing doubt about the integrity of the 2020 presidential
election well before the election, often via the platform then
called Twitter, and continued to do so through Election Day.
He posted the numerous tweets recounted in the complaints
(and related here) via his personal account,
@realDonaldTrump, to his 89 million followers. Swalwell
Compl. ¶ 15, J.A. 74; Thompson Compl. ¶ 38, J.A. 151. In
June 2020, for example, President Trump tweeted:
“MILLIONS OF MAIL-IN BALLOTS WILL BE PRINTED
BY FOREIGN COUNTRIES, AND OTHERS. IT WILL BE8
THE SCANDAL OF OUR TIMES!” Swalwell Compl. ¶ 25,
J.A. 76. That August, he stated that “the only way we’re going
to lose this election is if this election is rigged.” Thompson
Compl. ¶ 33, J.A. 150. And in October, he posted a tweet
accusing Democrats of “trying to steal this Election.” Swalwell
Compl. ¶ 25, J.A. 76.
The plaintiffs allege that President Trump communicated
the same message in the first presidential debate, in late
September 2020, where he stated: “[t]his is going to be a fraud
like you’ve never seen”; “[i]t’s a rigged election”; “[t]hey”—
Democrats—“cheat”; and they “found ballots in a wastepaper
basket three days ago, and . . . [t]hey all had the name Trump
on them.” Blassingame Compl. ¶¶ 13–15, J.A. 22–23. The
plaintiffs also contend that, in the same debate, President
Trump declined to conclusively reject the idea that the election
results might warrant a potentially violent response. When
invited by a moderator to “urge his supporters to ‘stay calm’
following the election, and ‘not to engage in any civil unrest,’”
he responded: “If it’s a fair election I am 100% on board. But
if I see tens of thousands of ballots being manipulated, I can’t
go along with that.” Id. ¶ 15, J.A. 23.
On Election Day, November 3, early returns showed
President Trump leading in key states. But as states began
processing more mail-in ballots, his lead started to dwindle.
Swalwell Compl. ¶¶ 27–28, J.A. 76–77. Soon after midnight
on November 4, as returns continued to come in, President
Trump tweeted: “We are up BIG, but they are trying to STEAL
the Election. We will never let them do it. Votes cannot be
cast after the Polls are closed!” Blassingame Compl. ¶ 17,
J.A. 24. The following day, President Trump reiterated his
claims of a stolen election, tweeting: “STOP THE COUNT!”
and “STOP THE FRAUD!” Swalwell Compl. ¶ 32, J.A. 78.
He echoed that claim late that night, tweeting: “I easily WIN9
the Presidency of the United States with LEGAL VOTES
CAST. The OBSERVERS were not allowed, in any way,
shape, or form, to do their job and therefore, votes accepted
during this period must be determined to be ILLEGAL
VOTES. U.S. Supreme Court should decide!” Id. ¶ 33, J.A.
78.
2.
a.
On November 7, all major U.S. news outlets projected that
then-former Vice President Biden and then-Senator Harris
would win the election. Blassingame Compl. ¶ 20, J.A. 25.
President Trump did not concede. Rather, over the ensuing
weeks, he continued to assert that the election had been stolen.
Id. ¶ 21, J.A. 25. For example, he tweeted that Democrats had
“so blatantly cheat[ed] in their attempt to steal the election,
which we won overwhelmingly.” Swalwell Compl. ¶ 36,
J.A. 80.
President Trump also attempted to alter the declared
election results by various means. According to the plaintiffs,
those efforts sought to further the sense among his supporters
that the election had been stolen. Thompson Compl. ¶ 34, J.A.
151. For instance, President Trump and his allies filed 62
lawsuits in state and federal courts around the country that
sought, on various theories, to overturn the results in key states.
Swalwell Compl. ¶ 60, J.A. 85; Thompson Compl. ¶ 36, J.A.
151. “Virtually all [of] th[e] lawsuits were rejected outright.”
Swalwell Compl. ¶ 61, J.A. 86; see also Blassingame Compl.
¶ 21, J.A. 25. In addition, President Trump tried to persuade
state and local officials in Michigan, Pennsylvania, and
Georgia to use their offices to change the declared results in
their jurisdictions. Swalwell Compl. ¶¶ 37–55, J.A. 80–84;
Thompson Compl. ¶¶ 46–52, J.A. 153–54.10
b.
When members of the Electoral College met in their
respective states on December 14, they collectively cast 306
electoral votes for then-President-elect Biden and 232 electoral
votes for President Trump. According to the complaints,
President Trump then began focusing his efforts on Congress,
which was set to meet on January 6 to officially tabulate
electoral votes and declare the next President pursuant to the
Electoral Count Act, 3 U.S.C. §§ 1–22. Blassingame Compl.
¶ 30, J.A. 29; Thompson Compl. ¶ 55, J.A. 155.
On December 19, President Trump posted a tweet
referencing a report “alleging election fraud ‘more than
sufficient’ to swing victory to Trump.” Swalwell Compl. ¶ 86,
J.A. 92. President Trump stated that it was “[s]tatistically
impossible” for him “to have lost the 2020 Election.” Id. He
added that there would be a “[b]ig protest in D.C. on January
6th,” and he called on his supporters to attend: “Be there, will
be wild!” Id. A week later, President Trump again promoted
the planned protest via Twitter, this time asserting that the
Department of Justice and the FBI had “done nothing about the
2020 Presidential Election Voter Fraud, the biggest SCAM in
our nation’s history, despite overwhelming evidence. They
should be ashamed. History will remember. Never give up.
See everyone in D.C. on January 6th.” Id. ¶ 56, J.A. 84.
Meanwhile, plans for the January 6 event, which became
known as the “Save America” rally, took shape. According to
the complaints, the rally’s organizers—including the group
Women for America First, at least one Trump campaign staff
member, and a Trump campaign fundraiser—secured a permit
to hold the event at the Ellipse, a large lawn just south of the
White House. Blassingame Compl. ¶ 59, J.A. 38; Swalwell
Compl. ¶¶ 97, 103, J.A. 98–99; Thompson Compl. ¶ 69, J.A
- The permit listed the Trump campaign’s director of
finance operations as the rally’s “VIP Lead,” and named Event
Strategies Inc.—which received payments from President
Trump’s campaign roughly three weeks before January 6—as
the event’s production vendor. Blassingame Compl. ¶ 31,
J.A. 29; Swalwell Compl. ¶ 97, J.A. 98; Thompson Compl.
¶ 68, J.A. 159.
More generally, the complaints allege that the Save
America rally was privately funded and that the Trump
campaign or persons associated with it were involved in
organizing and funding it, although there is some variation
among the complaints on the particulars. According to one
complaint, the rally “was a private event, organized in part by
[President] Trump’s former campaign staff” and “arranged and
funded by a small group including a top Trump campaign
fundraiser and donor.” Blassingame Compl. ¶ 59, J.A. 38
(internal quotation marks omitted). Another complaint alleges
that the Trump campaign itself funded the rally. See Swalwell
Compl. ¶ 97, J.A. 98. And the third complaint contends that “a
top Trump campaign fundraiser oversaw the logistics,
budgeting, funding and messaging” for the rally. Thompson
Compl. ¶ 68, J.A. 159. One of the complaints also alleges that
President Trump participated in planning the rally, including
by weighing in on the speaker lineup and music selection. Id.
¶ 69, J.A. 159.
The complaints also describe President Trump’s
promotion of the rally via Twitter in the immediate leadup to
the event. See Blassingame Compl. ¶¶ 36, 38, J.A. 32–34;
Swalwell Compl. ¶¶ 57, 98–99, J.A. 84–85, 98. He reiterated
his claims of election fraud on January 5, saying: “Washington
is being inundated with people who don’t want to see an
election victory stolen by emboldened Radical Left
Democrats.” Swalwell Compl. ¶ 57, J.A. 85. He also
repeatedly emphasized Vice President Pence’s role in the
counting of electoral votes. See U.S. Const. art. I, § 3, cl. 4; id.
amend. XII; 3 U.S.C. §§ 11, 15–18. The night before the rally,
for instance, President Trump tweeted: “Many States want to
decertify the mistake they made in certifying incorrect & even
fraudulent numbers in a process NOT approved by their State
Legislatures (which it must be). Mike [Pence] can send it
back!” Swalwell Compl. ¶ 98, J.A. 98.
c.
The Save America rally began at 7:00 AM on January 6 at
the Ellipse. Blassingame Compl. ¶ 58, J.A. 37. For several
hours, a slew of prominent supporters of President Trump gave
speeches decrying election fraud and demanding corrective
action. Swalwell Compl. ¶¶ 101–20, J.A. 99–102.
President Trump was the final speaker. He took the stage
at around noon and spoke for roughly 75 minutes. Id. ¶ 121,
J.A. 102. Although the complaints do not contain the full text
of his speech, they quote liberally from it, and the district court
“considered it in its entirety, analyzing it beyond the words
quoted in the Complaints.” Thompson v. Trump, 590
F. Supp. 3d 46, 83 (D.D.C. 2022); e.g., Blassingame Compl. ¶¶
60, 220, J.A. 38, 65; Swalwell Compl. ¶¶ 3, 121–28, 181, 211,
J.A. 71, 102–03, 118–19, 124–25; Thompson Compl. ¶¶ 82–
89, J.A. 162–65. The parties have thus treated the full speech
as incorporated into the complaints, and we will do the same.
See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133
(D.C. Cir. 2015). (A full transcript of President Trump’s
speech is available at Read: Former President Donald Trump’s
January 6 Speech, CNN (Feb. 8, 2021, 6:16 PM), https://www
.cnn.com/2021/02/08/politics/trump-january-6-speech-
transcript/index.html [https://perma.cc/MY5A-5UYH])14
requirements for voter ID”; requiring “proof of American
citizenship in order to vote in American elections”; banning
“ballot harvesting,” “the use of unsecured drop boxes to
commit rampant fraud,” and “universal, unsolicited mail-in
balloting”; and restoring “the vital civic tradition of in-person
voting on Election Day.”
At the close of his remarks, President Trump reiterated:
“Something’s wrong here. Something’s really wrong. Can’t
have happened. And we fight. We fight like hell and if you
don’t fight like hell, you’re not going to have a country
anymore.” He then ended his speech by saying: “So, we’re
going to, we’re going to walk down Pennsylvania
Avenue . . . and we’re going to the Capitol, and we’re going to
try and give—the Democrats are hopeless. They’re never
voting for anything . . . . But we’re going to try to give our
Republicans, the weak ones, because the strong ones don’t
need any of our help, we’re going to try and give them the kind
of pride and boldness that they need to take back our country.
So, let’s walk down Pennsylvania Avenue. I want to thank you
all. God bless you and God bless America.”
d.
By 12:53 PM—as President Trump was still speaking at
the Ellipse—a crowd had formed at the Capitol, and members
of the crowd broke through the outer security barriers.
Blassingame Compl. ¶¶ 65–66, J.A. 39–40; Swalwell Compl.
¶ 129, J.A. 104; Thompson Compl. ¶¶ 94–99, J.A. 166–67.
They were soon joined by people who had made their way from
the Ellipse to the Capitol after President Trump finished his
speech. Thompson Compl. ¶¶ 100–01, J.A. 167. President
Trump returned to the White House, where he watched
television coverage of the events unfolding at the Capitol.15
Blassingame Compl. ¶¶ 79, 94, J.A. 42, 44–45; Thompson
Compl. ¶ 106, J.A. 168.
Members of the crowd overcame Capitol Police officers,
some of whom were injured while defending the Capitol from
the rioters’ advance. Among those injured was plaintiff Sidney
Hemby, who was crushed against doors on the east side of the
Capitol, struck with fists and various objects, and sprayed with
chemicals. Blassingame Compl. ¶¶ 83–89, 138–44, J.A. 43–
44, 52. After rioters went inside the building, Capitol Police
announced a full lockdown of the Capitol, and both houses of
Congress stopped counting Electoral Votes and called recesses.
See id. ¶ 92, J.A. 44; Swalwell Compl. ¶ 137, J.A. 106.
At 2:24 PM, shortly after his supporters breached the
Capitol, President Trump tweeted: “Mike Pence didn’t have
the courage to do what should have been done to protect our
Country and our Constitution, giving States a chance to certify
a corrected set of facts, not the fraudulent or inaccurate ones
which they were asked to previously certify. USA demands the
truth!” Swalwell Compl. ¶ 138, J.A. 107. Fourteen minutes
later, he added: “Please support our Capitol Police and Law
Enforcement. They are truly on the side of our Country. Stay
peaceful!” Blassingame Compl. ¶ 118, J.A. 48.
Inside the Capitol, some lawmakers, including some of the
plaintiffs in these cases, became trapped inside the chambers as
rioters advanced. Swalwell Compl. ¶¶ 9–11, 137, J.A. 72–73,
106; Thompson Compl. ¶¶ 182–83, J.A. 183. Capitol Police
officers held off the rioters at gunpoint, deployed tear gas, and
told the trapped lawmakers to put on gas masks. Swalwell
Compl. ¶¶ 137, 233, J.A. 106, 129; Thompson Compl. ¶ 175,
J.A. 181. One floor below, in the Capitol Crypt, a group of
Capitol Police officers, including plaintiff James Blassingame,
attempted to fend off another group of rioters. The rioters16
struck Officer Blassingame with fists and weapons and
subjected him to racial epithets and threats. Blassingame
Compl. ¶¶ 95–113, J.A. 45–47.
At 4:17 PM, President Trump posted on Twitter a recorded
video statement in which he directed the rioters to go home.
Swalwell Compl. ¶ 147, J.A. 108–09. He also repeated his
claim that the election had been stolen and added: “I know
your pain, I know you’re hurt. . . . We love you. You’re very
special.” Id., J.A. 109. And at 6:01 PM, after Capitol Police
began clearing the building, President Trump tweeted: “These
are the things and events that happen when a sacred landslide
election victory is so unceremoniously & viciously stripped
away from great patriots who have been badly & unfairly
treated for so long. Go home with love & in peace. Remember
this day forever!” Id. ¶ 150, J.A. 109–10.
The riot resulted in injuries to 140 police officers and
claimed several lives. Id. ¶ 149, J.A. 109. Two weeks later, on
January 20, then-President-elect Biden and then-Vice
President-elect Harris took office.
B.
1.
The three cases consolidated in this appeal involve
complaints brought against President Trump and others in
connection with the January 6 riot. The plaintiffs are Capitol
Police officers and members of Congress who were at the
Capitol that day. They seek recovery for physical injuries and
emotional distress arising from the riot. Blassingame Compl.
¶¶ 150–228, J.A. 55–67; Swalwell Compl. ¶¶ 224–26,
J.A. 127; Thompson Compl. ¶¶ 151–267, J.A. 178–200. As
relief, they ask for damages (and other remedies), including17
from President Trump. Blassingame Compl., J.A. 67–68;
Swalwell Compl., J.A. 132–33; Thompson Compl., J.A. 201.
The plaintiffs sue President Trump in his personal
capacity. Blassingame Compl. ¶ 40, J.A. 34; Swalwell Compl.,
J.A. 70; Thompson Compl., J.A. 136. Each of the complaints
alleges that “[a]ll his conduct inciting his followers” as
described in the complaints “was conducted in his personal
capacity as a candidate for elected office, not in any official
capacity as President.” Blassingame Compl. ¶ 40, J.A. 34; see
Swalwell Compl. ¶¶ 15, 152, J.A. 74, 110; Thompson Compl.
¶¶ 22, 263, J.A. 146, 200. “For example,” one complaint
elaborates, President Trump “tweeted from his personal
Twitter account (@realDonaldTrump) and not from the
official, White House, [T]witter account, and he spoke at the
January 6 rally in his capacity as a losing candidate for the
Presidency.” Swalwell Compl. ¶ 15, J.A. 74; see Blassingame
Compl. ¶ 18, J.A. 24; Thompson Compl. ¶ 22, J.A. 146.
Each of the complaints asserts a claim against President
Trump under 42 U.S.C. § 1985, which prohibits conspiring to
prevent anyone from holding a federal office or from
performing the duties of a federal office. Blassingame Compl.
¶¶ 213–24, J.A. 63–67; Swalwell Compl. ¶¶ 166–84,
J.A. 114–19; Thompson Compl. ¶¶ 259–67, J.A. 199–200.
The Section 1985 claims are generally based on the contention
that President Trump engaged with others in a plan to prevent
Congress from discharging its duty to count electoral votes and
to prevent then-President-elect Biden and then-Vice-President-
elect Harris from assuming office. Two of the complaints
include various claims against President Trump under District
of Columbia law. Blassingame Compl. ¶¶ 150–212, 225–28,
J.A. 55–63, 67; Swalwell Compl. ¶¶ 192–261, J.A. 120–32.
And one of the complaints contains a claim against President18
Trump under 42 U.S.C. § 1986 for failing to stop the riot after
it started. Swalwell Compl. ¶¶ 185–91, J.A. 119–20.
2.
President Trump moved to dismiss the claims against him
on various grounds. Of principal relevance, he argued that he
is entitled to official-act immunity under Nixon v. Fitzgerald,
457 U.S. 731 (1982), as to all the claims against him.
The district court largely rejected President Trump’s claim
of immunity. It reasoned that President Trump’s alleged acts—
his tweets alleging fraud in the election, his efforts to persuade
state and local officials to change election outcomes, his
lawsuits challenging the election results, his participation in the
planning of the January 6 rally, and his speech at that rally—
were aimed at remaining in office for a second term, which, to
the court, was not an official function of the presidency.
Thompson, 590 F. Supp. 3d at 82–84. The court, however,
granted President Trump immunity as to the claim under 42
U.S.C. § 1986 for failing to stop the riot. That claim, the court
held, sought to hold President Trump liable for failing to
exercise his official presidential powers and so fell within his
official-act immunity. Id. at 84–85.
Beyond asserting official-act immunity, President Trump
also sought dismissal of the claims against him on the ground
that they seek to hold him liable for speech protected by the
First Amendment. The district court rejected that argument.
The court held that President Trump’s speech at the January 6
rally lay beyond the protection of the First Amendment because
it amounted to incitement of imminent lawless action. Id. at
115–18; see Brandenburg v. Ohio, 395 U.S. 444 (1969).
President Trump did not attempt to appeal the district court’s
denial of his First Amendment defense at this stage, see 2819
U.S.C. § 1292(b), so his potential entitlement to a dismissal on
First Amendment grounds is not before us in this appeal.
The district court dismissed several of the claims brought
under District of Columbia law as inadequately pleaded on the
merits. Thompson, 590 F. Supp. 3d at 121–22, 124–25, 126.
But it held that the plaintiffs had plausibly alleged that
President Trump had violated Section 1985 and so allowed the
Section 1985 claims against President Trump to proceed. Id.
at 101–05. And the court reached the same conclusion as to
some of the claims under District of Columbia law. Id. at 119–
21, 122–24, 125. Those claims against President Trump thus
remain live and await resolution.
II.
President Trump appeals the district court’s denial of his
claim of official-act immunity. That is the sole issue before us.
While the denial of a motion to dismiss ordinarily is not
immediately appealable, an order denying a claim of official
immunity is an immediately appealable collateral order. See
Nixon, 457 U.S. at 742–43. In considering President Trump’s
claim of immunity, we review the “district court’s legal
determinations de novo and assume the truth of the [plaintiffs’]
material factual allegations.” Blumenthal v. Trump, 949 F.3d
14, 18 (D.C. Cir. 2020); see also Clinton, 520 U.S. at 685.
A.
The Supreme Court’s decisions in Nixon v. Fitzgerald and
Clinton v. Jones establish the basic framework for our analysis.
In Nixon, A. Ernest Fitzgerald sought civil damages from
President Richard M. Nixon and other officials for allegedly
eliminating his job at the Department of the Air Force in
retaliation for unflattering congressional testimony he had
provided about his superiors. 457 U.S. at 734, 739. The Court20
concluded that President Nixon, “as a former President of the
United States, [wa]s entitled to absolute immunity from
damages liability predicated on his official acts.” Id. at 749.
Such immunity, the Court said, is a “functionally mandated
incident of the President’s unique office, rooted in the
constitutional tradition of the separation of powers and
supported by our history.” Id.
The presidential-immunity doctrine articulated in Nixon is
capacious by design. In pre-Nixon official-immunity cases
involving other officials, the Court had employed a
“‘functional’ approach” under which, for most officials, “the
scope of the [immunity] defense varied in proportion to the
nature of [the officials’] official functions and the range of
decisions that conceivably might be taken in ‘good faith.’” Id.
at 746 (discussing Scheuer v. Rhodes, 416 U.S. 232, 247
(1974)); see also id. at 755. But the President, the Nixon Court
explained, “occupies a unique position in the constitutional
scheme.” Id. at 749. As the embodiment of the executive
branch, he “must make the most sensitive and far-reaching
decisions entrusted to any official under our constitutional
system.” Id. at 752. The principal rationale for official
immunity—“providing an official ‘the maximum ability to deal
fearlessly and impartially with’ the duties of his office”—thus
applies to the President with pronounced force. Id. (quoting
Ferri v. Ackerman, 444 U.S. 193, 203 (1979)). For that reason,
the Court found it “appropriate to recognize absolute
Presidential immunity from damages liability for acts within
the ‘outer perimeter’ of his official responsibility.” Id. at 756.
The decisions from which Nixon drew the outer-perimeter
test make evident that a President’s official responsibilities
encompass more than just those acts falling within the office’s
express “constitutional and statutory authority.” Id. at 757.
Official responsibilities also include “discretionary acts”21
within the “concept of duty” associated with the office. Barr
v. Matteo, 360 U.S. 564, 575 (1959) (plurality opinion). Put
somewhat differently: an act lies within the outer perimeter of
an official’s duties if it is “the kind of act not manifestly or
palpably beyond [the official’s] authority, but rather having
more or less connection with the general matters committed by
law to his control or supervision.” Martin v. D.C. Metro.
Police Dep’t, 812 F.2d 1425, 1429 (D.C. Cir. 1987), overruled
on other grounds by Crawford-El v. Britton, 93 F.3d 813 (D.C.
Cir. 1996) (en banc), rev’d 523 U.S. 574 (1998) (quoting
Briggs v. Goodwin, 569 F.2d 10, 16 (D.C. Cir. 1977)); accord
Spalding v. Vilas, 161 U.S. 483, 498–99 (1896).
Applying the outer-perimeter test to President Nixon’s
alleged conduct, the Nixon Court had little trouble holding that
President Nixon was entitled to official immunity. See 457
U.S. at 756–57. President Nixon, the Court reasoned, had the
“constitutional and statutory authority to prescribe the manner
in which the Secretary will conduct the business of the Air
Force,” including by “prescrib[ing] reorganizations and
reductions in force.” Id. at 757. The Court reached that
conclusion notwithstanding Fitzgerald’s contentions that his
dismissal had been retaliatory and that “no federal official
could, within the outer perimeter of his duties of office,”
dismiss Fitzgerald without satisfying the applicable for-cause
removal standard “in prescribed statutory proceedings.” Id. at
756. Denying immunity on those grounds, the Court explained,
would require a “highly intrusive” examination of “the
President’s motives” and “subject the President to trial on
virtually every allegation that an action was unlawful, or was
taken for a forbidden purpose.” Id. Doing so would therefore
“deprive absolute immunity of its intended effect.” Id.
The Court revisited a President’s official-act immunity
fifteen years later in Clinton, its most recent case on the subject23
Together, Nixon and Clinton establish three governing
principles. First, the President is entitled to official immunity
from civil damages liability based on actions within the “outer
perimeter” of official presidential responsibility, including
discretionary acts within the concept of duty associated with
the presidency. Second, the President is subject to civil
damages suits based on actions taken in an unofficial, private
capacity to the same extent as any private citizen. And third,
the President’s actions do not fall beyond the outer perimeter
of official responsibility merely because they are unlawful or
taken for a forbidden purpose. Rather, the President’s official
immunity insulates all of his official actions from civil
damages liability, regardless of their legality or his motives.
B.
President Trump maintains that his actions as alleged in
the complaints fall within the outer perimeter of official
presidential responsibility, entitling him to official-act
immunity as to all the claims against him. His primary
argument is that his alleged actions leading up to and on
January 6 were official presidential actions because they
amounted to speech on matters of public concern. In the
alternative, he submits that those actions were official because
they came within his constitutional duty under the Take Care
Clause. We are unpersuaded by either argument.
1.
We begin with President Trump’s principal contention:
that a President enjoys absolute immunity from civil damages
liability whenever he speaks on matters of public concern.
Without reaching the question whether all of President
Trump’s pertinent actions alleged in the complaints in fact
involved speech on matters of public concern, we reject his
submission that such speech invariably counts as official24
activity. To endorse that argument would be to establish “an
immunity from suit for unofficial acts grounded purely in the
identity of [the President’s] office.” Clinton, 520 U.S. at 695.
The salient question in the cases before us is whether President
Trump took the actions alleged in the complaints in his official
capacity or instead in his private capacity. The question
whether those actions involved speech on matters of public
concern bears no inherent connection to the essential
distinction between official and unofficial acts.
a.
The most basic premise of President Trump’s argument—
that speaking on matters of public concern is something
Presidents regularly do in the exercise of official
responsibilities—is incontestable. “The President of the
United States possesses an extraordinary power to speak to his
fellow citizens and on their behalf.” Trump v. Hawaii, 138
S. Ct. 2392, 2417–18 (2018). That power—famously labeled
the presidential “bully pulpit” by Theodore Roosevelt—is an
everyday tool of the presidency. And many uses of the
presidential bully pulpit fall comfortably “within the ‘outer
perimeter’ of [the President’s] official responsibility.” Nixon,
457 U.S. at 756.
True, there is no Bully Pulpit Clause in the Constitution.
But as we have explained, the outer perimeter of official
responsibility extends beyond a President’s expressly
enumerated powers to encompass “discretionary acts” within
the “concept of duty” associated with the office. Barr, 360 U.S.
at 575 (plurality opinion). The President thus acts within the
outer perimeter of his official functions when he announces his
intention to issue an executive order, eulogizes the fallen leader
of an ally, or offers the nation’s condolences and support to a
community reeling from a tragedy.25
President Trump’s argument, though, reaches
considerably further: he insists that all of a President’s speech
on matters of public concern, as a categorical rule, is an
exercise of official presidential responsibility. That is a
sweeping proposition, and one that ultimately sweeps too far.
The notion that speech must relate to a matter of public concern
does not rule out much when the speaker is the President. “In
view of the visibility of his office and the effect of his actions
on countless people,” Nixon, 457 U.S. at 753, a great deal of
what the President does or speaks about becomes a matter of
public concern merely by virtue of the identity of his office,
even if it would not amount to a matter of public concern if
performed or said by someone else.
To see how far a public-concern test reaches, consider
initially an example involving conduct alone rather than
speech—in particular, sexual misconduct. Such conduct, as
President Trump concedes, is presumably of a “manifestly
private nature,” undertaken in a private, unofficial capacity.
Trump Reply Br. 12; see also Clinton, 520 U.S. at 686. Yet
alleged sexual misconduct involving the President is also
plainly “a subject of legitimate news interest; that is, a subject
of general interest and of value and concern to the public.”
Snyder v. Phelps, 562 U.S. 443, 453 (2011) (quoting City of
San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (per curiam)). To
immunize a President from civil damages liability for alleged
sexual misconduct during his presidency just because the
conduct is a matter of public concern, then, would be to
“construct an immunity from suit for unofficial acts grounded
purely in the identity of his office.” Clinton, 520 U.S. at 695.
President Trump’s proposed public-concern test would
unduly broaden official-act immunity in much the same way
for presidential speech. The Supreme Court has “never
suggested that the President . . . has an immunity that extends26
beyond the scope of any action taken in an official capacity.”
Id. at 694. President Trump’s public-concern standard, though,
would do just that. When the speaker is the President, speech
undertaken in a plainly and purely unofficial capacity will often
involve a matter of public concern. Yet President Trump’s test
would still grant immunity in that circumstance, even though
there is “no support for an immunity for unofficial conduct” (or
speech). Id.
As an example, consider a situation directly germane to the
cases before us in which President Trump publicly volunteered
that he was acting—and speaking—in an unofficial, private
capacity. In the period after the 2020 election and before
January 6, the Supreme Court considered an effort by Texas to
challenge the administration of the election in several
battleground states in which then-President-elect Biden had
been declared the winner. Texas v. Pennsylvania, No. 22O155
(U.S. 2020). President Trump moved to intervene in the case.
In doing so, he specifically explained to the Supreme Court
(and captioned his filing accordingly) that he sought to
“intervene in this matter in his personal capacity as a candidate
for re-election to the office of President of the United States.”
Motion of Donald J. Trump, President of the United States, to
Intervene in his Personal Capacity as Candidate for Re-
Election, Proposed Bill of Complaint in Intervention, and Brief
in Support of Motion to Intervene 14, Texas v. Pennsylvania,
No. 22O155 (U.S. Dec. 9, 2020) (Trump Mot. to Intervene).
He relatedly elaborated that he wished “to intervene to protect
his unique and substantial personal interests as a candidate for
re-election to the Office of President.” Id. at 24.
President Trump, then, affirmatively communicated to the
Supreme Court (and the public) that he was acting and speaking
in that matter in his “personal capacity” as a candidate for re-
election—indeed, he explained that his reason for wanting to27
participate in the case was a “substantial personal” one rather
than an official one. That stands in sharp contrast with other
cases in which he—like all Presidents—had filed briefs in the
Supreme Court in his “official capacity as President of the
United States.” See, e.g., Brief for the Petitioners at II, Trump
v. Hawaii, 138 S. Ct. 2392 (No. 17-965). But while President
Trump’s effort to participate in Texas v. Pennsylvania was
made in an expressly and self-consciously personal, unofficial
capacity, the content of his speech in his submission
undoubtedly involved a matter of significant public concern:
his challenge to the election results in various pivotal states,
whose “electors [would] determine the outcome of the
election.” Trump Mot. to Intervene 27.
As that example illustrates, an immunity for all
presidential speech on matters of public concern—without
regard to the context in which the President speaks—would be
grounded purely in “the identity of the actor who performed it”
rather than “the nature of the function performed.” Clinton,
520 U.S. at 695 (quoting Forrester, 484 U.S. at 229). Such a
result is “unsupported by precedent.” Id. And it is unsupported
by the basic object of granting a President official-act
immunity: assuring that the President is not “unduly cautious
in the discharge of his official duties.” Id. at 694 (emphasis
added) (quoting Nixon, 457 U.S. at 752 n.32). That concern
necessarily has no salience when the President acts—by his
own admission—in an unofficial, private capacity.
b.
As President Trump’s intervention motion in Texas v.
Pennsylvania highlights, whether the President speaks (or
engages in conduct) on a matter of public concern bears no
necessary correlation with whether he speaks (or engages in
conduct) in his official or personal capacity. And because it is28
the latter question that governs the availability of presidential
immunity—as a matter both of precedent and of the essential
nature of an immunity for (and only for) official acts—we must
reject President Trump’s proposed public-concern test as ill-
suited to the inquiry.
President Trump’s intervention motion is telling in a
related respect as well, which pertains to identifying when a
President acts in an official or private capacity in the specific
circumstances of the cases before us. The motion expressly
recognizes, as we hold today, that when a sitting President acts
as a “candidate for re-election,” he does so in his “personal
capacity,” not in an official capacity. Trump Mot. to Intervene
14. Otherwise said, a sitting President, just like the candidates
he runs against, is subject to civil damages liability for his
actions constituting re-election campaign activity.
The principle that an incumbent President seeks re-
election in his private capacity rather than in his official
capacity finds its roots in the Framing. Madison explained that
“[a] dependence on the people is no doubt the primary controul
on the government.” The Federalist No. 51, at 349 (James
Madison) (Jacob E. Cooke ed., 1961). To that end, the Framers
“render[ed] the President directly accountable to the people
through regular elections.” Seila Law LLC v. CFPB , 140 S. Ct.
2183, 2203 (2020). And “every practicable obstacle” was
imposed to prevent “cabal, intrigue and corruption” from
giving an incumbent President a structural electoral
advantage—including the exclusion from service in the
Electoral College of “all those who from situation might be
suspected of too great devotion to the president in office.” The
Federalist No. 68, supra, at 459 (Alexander Hamilton); see also
U.S. Const. art. II, § 1, cl. 2.29
The essence of those Framing-era principles, in the words
of Chief Justice Marshall, is that “the president is elected from
the mass of the people, and, on the expiration of the time for
which he is elected, returns to the mass of the people again.”
United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807)
(Marshall, Circuit Justice). That fundamental understanding
holds regardless of whether the person elected to serve as the
next President also happens to be the incumbent. A sitting
President has no inherently greater claim to serving the next
four-year term than does any other candidate. And if an
incumbent President seeks and ultimately wins re-election, he
does so in the same manner as anyone else vying for the office:
he “is elected from the mass of the people.” Id.
It follows that, when a sitting President acts in his capacity
as a candidate for re-election, he acts as office-seeker, not
office-holder. The presidency itself has no institutional interest
in who will occupy the office next. Campaigning to attain that
office thus is not an official function of the office. Rather, an
incumbent President’s interests in winning re-election have the
same purely private character as those of his challengers—i.e.,
“substantial personal interests as a candidate” to attain (or
retain) the office. Trump Mot. to Intervene 24. Accordingly,
a President acts in a private, unofficial capacity when engaged
in re-election campaign activity.
The executive branch’s own views and practice reinforce
the point. In 1982, just a few months before the Supreme Court
decided Nixon, the Department of Justice’s Office of Legal
Counsel (OLC) advised President Reagan that “funds
appropriated for the official functioning of the offices of the
President and the Vice President may be used for travel
expenses only if the travel is reasonably related to an official
purpose,” and that “appropriated funds” thus “should not be
used to pay for political events.” Payment of Expenses30
Associated with Travel by the President and Vice President, 6
Op. O.L.C. 214, 215–16 (1982). Political events, OLC
reasoned, generally have “no reasonable connection” to the
“official purposes” served by appropriated funds. Id. at 216.
“As a general rule,” moreover, “Presidential and Vice
Presidential travel should be considered ‘political’ if its
primary purpose involves their positions as leaders of their
political party”—as would be the case with “[a]ppearing at
party functions, fundraising, and campaigning for specific
candidates,” of course including for oneself. Id. at 217 (citation
omitted).
The executive branch itself thus considers its own chief
office-holder’s campaign for re-election to lie well outside his
official functions. A contrary conclusion would grant a sitting
President immunity based “purely in the identity of his office,”
improperly treating his efforts to gain the office for a second
term as an official act of the office. Clinton, 520 U.S. at 695.
Compare, for instance, a former one-term President who
runs to regain the presidency for a second, non-consecutive
term with a current one-term President who runs to retain office
for a second straight term. Whether a one-term President runs
to regain the office or to retain it, the object is the same: to
serve (again) as President in the next term. And with respect
to their campaign-related activity to attain that objective, there
is no basis for cloaking a sitting President running for the office
with an immunity—and resulting advantage—that a former
President running for the office would lack. Both act in their
“personal capacity as a candidate for re-election to the office of
President.” Trump Mot. to Intervene 14. President Trump’s
proposed public-concern standard, though, would treat them
differently: the sitting President would enjoy absolute
immunity for all speech on a matter of public concern, even
purely campaign speech given strictly in his capacity as
32
familiar voiceover, “I am Jane Doe, and I approve this
message.” Id. Under President Trump’s proposed public-
concern test, if the candidate happens to be the sitting President
(but not if she is a former President or any other candidate), her
speech in the ad would be official—even though it is plainly
campaign speech in a campaign ad given in her private capacity
as candidate. A sitting President then would be absolutely
immune from defamation liability for something she may have
said about her opponent in the campaign ad, whereas a former
President would face liability for saying the very same thing in
the very same ad.
The pro-incumbent imbalance would be especially stark if
the former and current Presidents were to run against each
other. In that situation, one candidate, the former President,
would face civil damages liability for statements on matters of
public concern in campaign ads or in an acceptance speech at a
party convention. But the competing candidate, the sitting
President, would be wholly insulated from damages liability
for making the very same statements on the opposing side of
the very same race. We see no basis for giving an incumbent
President that kind of asymmetrical advantage when running
against his predecessor.
That is not to say that, when an incumbent President
engages in campaign speech as a candidate, there is no
recognition of his current office. At the party convention, he
presumably would be introduced and referred to as the
President, as is natural. And relatedly, he may give the
acceptance speech at a podium affixed with the presidential
seal, as nominees of both major political parties have done
when speaking in their private capacities as candidates for re-
election. See, e.g., Mark Knoller, Presidential Seal Returns to
Obama Campaign Events After Change of Heart, CBS News
(July 6, 2012, 5:31 PM), https://www.cbsnews.com/news33
/presidential-seal-returns-to-obama-campaign-events-after-
change-of-heart [https://perma.cc/533X-EVHE]; George W.
Bush 2004 Acceptance Speech, C-SPAN (Sept. 2, 2004),
https://www.c-span.org/video/?182731-2/george-w-bush-
2004-acceptance-speech [https://perma.cc/6Z26-TNBD].
But while the person giving the address is—and is
recognized to be—the sitting President, he still delivers the
address in his private, unofficial capacity as candidate for re-
election. It is analogous to the President appearing in a public
filing as the “President of the United States” but specifically
“in his personal capacity as candidate for re-election.” Trump
Mot. to Intervene 1 (capitalization altered). And when the
President speaks strictly in that capacity, there is no warrant for
granting him official-act immunity.
In short, a President’s speech on matters of public concern
can be an official act, as in the case of the State of the Union
address, or an unofficial act, as in the case of a speech at a re-
election campaign rally. For purposes of presidential
immunity, the key is whether the President is speaking (or
engaging in conduct) in an official capacity as office-holder or
instead in an unofficial capacity as officer-seeker. Whether the
speech relates to matters of public concern is beside the point.
Because President Trump believes that speech on matters
of public concern constitutes official presidential action as a
categorical matter, he makes no effort in this appeal to resist
the notion that he was acting in his capacity as a candidate
when engaged in the activity alleged in the complaints. In his
view, he is entitled to immunity regardless of whether “he was
acting as a candidate.” Trump Br. 18. Even if so, President
Trump submits, his relevant actions “[i]n the run-up to January
6th and on the day itself” amounted to speech on a matter of
public concern—i.e., the “integrity of the 2020 election”—and34
so fell “well within the scope of ordinary presidential action”
entitled to immunity. Id. at 4.
As President Trump would have it, then, he engaged in
official presidential action for immunity purposes even when
he, by his own description, acted and spoke “in his personal
capacity as a candidate for re-election” rather than in his
“official capacity as President.” Trump Mot. to Intervene 14;
accord id. at 1, 3, 6, 19; compare Brief for the Petitioners at II,
Trump v. Hawaii, 138 S. Ct. 2392 (No. 17-965). After all, his
arguments in that filing addressed at length the same matter of
public concern he invokes in this appeal—the “integrity of the
2020 election.” Trump Br. 4; see Trump Mot. to Intervene 4–
5, 8–12, 15–17, 25–28, 37–38. But as the Supreme Court has
explained, there is “no support for an immunity for unofficial
conduct,” Clinton, 520 U.S. at 694, and hence no basis for
granting immunity for conduct (or speech) the President
himself contemporaneously recognizes he undertakes in his
personal, unofficial capacity as a candidate.
c.
Under Nixon and Clinton, then, the task is to distinguish
between official acts and private acts. In the context of the
cases before us, that means determining whether President
Trump acted as an office-holder or office-seeker when he
engaged in the activity alleged in the complaints.
In that regard, we recognize that “there is not always a
clear line between [the President’s] personal and official
affairs.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034
(2020). In particular, “the line between President and
candidate will not always be clear.” Trump Br. 18 (quoting
Thompson, 590 F. Supp. 3d at 80). But in some situations,
there will be little doubt, and not just when the President
himself allows that he acts “in his personal capacity as a35
candidate for re-election.” Trump Mot. to Intervene 14. When
a sitting President solicits donations at a fundraiser for his re-
election campaign, fires a campaign pollster or hires a new one,
or gives a speech at a party convention accepting the party’s
nomination, it is straightforward to conclude that he acts in an
unofficial capacity as presidential candidate rather than an
official capacity as incumbent President.
Even if other contexts doubtless present closer calls, there
is ultimately no avoiding the essential understanding that a
President’s immunity from damages liability applies only to
“acts within the ‘outer perimeter’ of his official responsibility,”
Nixon, 457 U.S. at 756, and hence does not “extend[] beyond
the scope of any action taken in an official capacity,” Clinton,
520 U.S. at 694. The potential difficulty of meting out that
distinction in some situations, then, cannot justify simply
giving up on the enterprise altogether. And President Trump
himself allows that “courts can, in fact, tell the difference
between official and unofficial conduct.” Trump Reply Br. 14.
The inquiry, though, should be fashioned and carried out
with appropriate sensitivity to the important interests at stake.
In that connection, the Supreme Court has emphasized the need
to avoid “highly intrusive” inquiries “into the President’s
motives.” Nixon, 457 U.S. at 756. An assessment of whether
the President is engaged in official functions or unofficial re-
election campaign activity, correspondingly, does not turn on
whether the activity was subjectively undertaken in some
measure to enhance the President’s re-election prospects or
profile. The inquiry instead is an objective one, “grounded in”
a context-specific assessment of “the nature of the function
performed.” Clinton, 520 U.S. at 695 (internal quotation marks
and citation omitted).36
We emphasize context because, only by looking to context
can the relevant nature of an action be understood. The same
essential message or act may be either official or unofficial
depending on the circumstances in which it is delivered or
performed. The President’s delivery of the State of the Union
address to Congress (and the public), for instance, is an official
act. See U.S. Const. art. II, § 3. That remains so regardless of
whether he may draw themes and make points with an eye on
maintaining his public standing in an election year, or whether
priorities given primacy in the speech may echo ones
emphasized on the campaign trail. Conversely, a speech at a
campaign rally fully funded by a President’s campaign
committee might relate some of the same messages as the State
of Union address, but is an unofficial event by nature.
Similarly, the President can remove the Secretary of State, and
he can remove his campaign manager. The former is an official
exercise of the executive power. See Nixon, 457 U.S. at 757;
Seila Law, 140 S. Ct. at 2197. But the latter is no such thing.
Understanding the context, then, will often be essential to
identifying the capacity in which a President acts.
That context may be substantially informed by the way in
which the President and the executive branch themselves treat
the activity in question. If it is clothed in the trappings of an
official function based on objective indicia, it more likely
constitutes an official act for immunity purposes than if it bears
the hallmarks of re-election campaign activity. So, if an
activity is organized and promoted by official White House
channels and government officials and funded with public
resources, it is more likely an official presidential undertaking
than if it is organized, promoted, and funded by campaign
channels, personnel, and resources. Cf. Payment of Expenses,
6 Op. O.L.C. at 215–17. Those considerations may not always
point in the same direction, or even be known, but they can be
illuminating when brought to light. The grant of immunity37
aims to free the President from an inclination that may
otherwise exist to discharge his official functions in an unduly
cautious manner. Yet if the President’s (and executive
branch’s) own treatment of the matter exhibits that he views
himself to be engaged in private activity as a candidate, there
is no cognizable public interest in assuring he can carry out that
quintessentially unofficial function with boldness.
When an appropriately objective, context-specific
assessment yields no sufficiently clear answer in either
direction, the President, in our view, should be afforded
immunity. The “special nature of the President’s constitutional
office and functions” prompted the Nixon Court to extend
immunity to the “outer perimeter of his official responsibility.”
457 U.S. at 756 (internal quotation marks omitted). And
subsequent decisions have construed statutes not to constrain
presidential action absent clear indication of Congress’s intent
to do so. See Franklin v. Massachusetts, 505 U.S. 788, 800–
01 (1992); Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440,
465–67 (1989); cf. Application of 28 U.S.C. § 458 to
Presidential Appointments of Federal Judges, 19 Op. O.L.C.
350, 351–57 (1995). The same considerations counsel in favor
of construing the President’s actions to involve official
functions “so long as [they] can reasonably be understood” as
such. Hawaii, 138 S. Ct. at 2420. Conversely, though, when a
President’s actions viewed objectively and in context may
reasonably be understood only as re-election campaign
activity, a court not only may, but must deny immunity. By
doing so, the court “acts, not in derogation of the separation of
powers, but to maintain their proper balance.” Nixon, 457 U.S.
at 754.
We have no occasion to apply that framework in this
appeal because, as explained, President Trump makes no
argument at this stage that his actions as alleged in the38
complaints were not re-election campaign activity. He will
have every opportunity to make such an argument in the
proceedings to come in the district court. See pp. 51–54, infra.
But the inquiry we have outlined is consistent with his
submission that the analysis should turn on “the function being
performed and not the politics or policy being advanced or the
words being used.” Trump Reply Br. 11. And the inquiry does
not consist of “[t]rying to identify speech that would benefit a
president politically.” Id. at 4.
That is not to say that the content of a speech will
invariably be entirely off-limits. In certain circumstances, for
instance, it could serve to confirm what an objective
assessment of the context makes evident. Indeed, even
“[d]eciding whether speech is of public or private concern”
under President Trump’s proposed approach would “require[]
us to examine the content, form, and context of that speech.”
Snyder, 562 U.S. at 453 (internal quotation marks and citation
omitted). But the crux of the inquiry we have described
concerns the context in which the President speaks, not what
precisely he says or whether it might advance his re-election
prospects.
By way of illustration, consider President Trump’s speech
at the “Salute to America” event on the National Mall on July
4, 2019. By the time of that address, President Trump had
formally announced his candidacy for re-election. Maggie
Haberman et al., Trump, at Rally in Florida, Kicks Off His 2020
Re-election Bid, N.Y. Times (June 18, 2019),
https://www.nytimes.com/2019/06/18/us/politics/donald-
trump-rally-orlando.html [https://perma.cc/A2GB-P96X].
And his address drew criticism in many quarters as amounting
to a taxpayer-funded campaign rally in service of his re-
election effort. See, e.g., Juliet Eilperin et al., Park Service
Diverts $2.5 Million in Fees for Trump’s Fourth of July39
Extravaganza, Wash. Post (July 2, 2019, 9:39 PM), https://
www.washingtonpost.com/politics/white-house-gives-tickets-
to-trumps-july-fourth-extravaganza-to-gop-donors/2019/07/02
/9109a566-9ce0-11e9-b27f-ed2942f73d70_story.html [https://
perma.cc/48UL-HV9W]. But several objective considerations
strongly suggest that the speech was—and was treated by the
President and executive branch as—part of an official event,
regardless of whether what was said or how it was conceived
might have borne some subjective connection to enhancing
President Trump’s re-election prospects.
For instance, the Salute to America rally was publicly
funded, including through National Park Service and
Department of Defense resources. See id.; Kathryn Watson,
Pentagon Spent $1.2 Million for Trump’s July 4 “Salute to
America”, CBS News (July 10, 2019, 8:09 AM),
https://www.cbsnews.com/news/trumps-july-4-salute-to-
america-cost-military-1-2-million-pentagon-says/ [https://
perma.cc/87S6-ZWFT]. In addition, the government promoted
the event, and its primary organizers were government officials
from the White House and the Department of the Interior. See
Eilperin et al., supra. The National Park Service, for example,
“presented” the event and invited the public to attend. News
Release, Nat’l Park Serv., National Park Service Presents 2019
Independence Day Celebration in the Nation’s Capital (June
27, 2019), https://www.nps.gov/nama/learn/news/national-
park-service-presents-2019-independence-day-celebration-in-
the-nation-s-capital.htm [https://perma.cc/9B8B-S3P6].
Accordingly, the White House treated President Trump’s
speech as official presidential remarks on its official website
and, while President Trump was in office, dedicated a web page
to the annual Salute to America event. See Remarks by
President Trump at the 2019 Salute to America, The White
House (July 5, 2019), https://trumpwhitehouse.archives.gov
41
2.
We turn next to President Trump’s alternative argument
that he is entitled to official-act immunity because he took the
actions alleged in the complaints in an exercise of his Article II
duty to “take Care that the Laws be faithfully executed.” U.S.
Const. art. II, § 3. President Trump’s contention in that regard,
however, does not demonstrate that he was acting in his official
capacity so much as presume it. His argument presents no
ground for affording him immunity that is independent of his
ability to show that he engaged in the relevant actions in his
official capacity as President rather than in his private capacity
as presidential candidate.
The duty and authority to ensure the faithful execution of
the laws, as with all of the executive power, is vested in the
President solely in his official capacity. See U.S. Const. art. II,
§ 1, cl. 1. After all, the President assumes his Take Care Clause
responsibilities and other executive duties only upon taking the
constitutional oath of office, in which he must “solemnly swear
(or affirm)” that he “will faithfully execute the Office of
President of the United States.” Id. art. II, § 1, cl. 8 (emphasis
added). Nothing in Article II contemplates the President’s
exercise of the powers of the presidency when acting in a
private—i.e., non-presidential—capacity. Rather, President
Trump’s assertion that he exercised his authority under the
Take Care Clause, at least without more, assumes the answer
to the question whether he acted in an official capacity as
office-holder or in a private capacity as office-seeker. If he
acted in the latter capacity, he cannot have been exercising the
duties of the very office he was seeking to attain—any more
than could his challengers when taking the same kinds of
actions in seeking to attain the same office.42
It is not that President Trump could not establish his
entitlement to immunity by demonstrating that he acted
pursuant to the Take Care Clause; it is that he has not done so.
He asserts that he was attempting to ensure faithful execution
of the laws—in particular, the Electoral Count Act—but he has
not explained why his actions should count as official other
than to say they fit within the ambit of his Take Care Clause
duties. They might, or they might not, depending on the
context in which he acted. The President could exhort
Congress to do its duty under the Electoral Count Act in a
campaign ad, or he could do the same in the State of the Union
address. Even assuming (without deciding) that the latter
would be an action taken in furtherance of the President’s Take
Care Clause duties, the former would not be—and indeed could
not be, given that, as explained, the Take Care Clause
presupposes official rather than private action. President
Trump, though, has made no argument as to why his actions
alleged here should be treated more like the State of the Union
than the campaign ad. His invocation of the Take Care Clause
thus ultimately does not add anything to his claim of immunity
in the circumstances of the cases before us.
C.
Whereas President Trump propounds a theory of immunity
that, in application, could confer immunity even if he acted in
an unofficial capacity as presidential candidate, the plaintiffs’
theory presents the opposite shortcoming: it could deny a
President immunity even if he acted in his official capacity as
sitting President. The government’s proposed approach
ultimately shares that same deficiency. We thus decline to
adopt either the plaintiffs’ or government’s proposed rationales
for rejecting President Trump’s claim of immunity.43
1.
The plaintiffs argue that a President’s official
responsibilities “do not include engaging in campaign
activity.” Plaintiffs’ Br. 33. That reasoning, consistent with
the approach we have outlined, focuses on whether the
President acted in his official capacity as incumbent office-
holder or instead engaged in campaign activity in his private
capacity as office-seeker. To that extent, we agree with the
plaintiffs’ understanding of the pertinent inquiry in the cases
before us.
But the plaintiffs also go further. In their view, President
Trump’s actions were not official activity—and thus are not
imbued with immunity—because they obstructed a
constitutional process in which his office had no role, thereby
infringing on the separation of powers. The plaintiffs maintain
that the Constitution intentionally excludes the President from
the formal process of counting electoral votes, assigning that
function instead to Congress and the Vice President in his
capacity as the President of the Senate. See U.S. Const. art. II,
§ 1, cl. 3–4; id. amend. XII. President Trump’s alleged efforts
to interfere in that process, the plaintiffs assert, thus necessarily
fell beyond the outer perimeter of his official presidential
duties, and indeed undermined the democratic legitimacy of the
presidency. As a result, the plaintiffs urge, President Trump’s
claim of immunity must be denied.
That argument, in our view, cannot carry the day. Nixon’s
outer-perimeter test, as we have explained, does not confine the
President’s official-act immunity to actions the Constitution
expressly authorizes him to take. See pp. 20–21, 24, supra. We
do not doubt, for instance, that the President can act in an
official capacity when commenting on state legislation, on a
judicial decision, or on Congress’s internal procedures, even44
though those matters may lie beyond the President’s own
enumerated job duties. To be sure, if the President speaks
about those subjects at a re-election campaign rally, he does so
in an unofficial capacity. But that is because he acts in his
private capacity as a presidential candidate, not because he
engages with matters falling outside his enumerated executive
responsibilities.
Here, insofar as the plaintiffs’ argument rests on the notion
that President Trump’s alleged actions infringed the separation
of powers, their reasoning tends on balance to support granting
immunity more than it does withholding it. The plaintiffs
assert that President Trump “disrupted the constitutionally
mandated separation of powers by invading a coordinate
branch of government [i.e., Congress] as it carried out its own
constitutional duties” to count the votes of the Electoral
College. Plaintiffs’ Br. 28. That kind of “executive branch
interference,” to the plaintiffs, id. at 33, works a “blatant
violation of the constitutional separation of powers that
‘restrains each of the three branches of the Federal Government
from encroaching on the domain of the other two,’” id. at 29–
30 (quoting Clinton, 520 U.S. at 691).
In conceiving of President Trump’s actions as an effort by
one branch to interfere in another branch’s sphere, however,
the plaintiffs’ argument presupposes that President Trump
acted in an official capacity. He could effect an executive
branch incursion on a coordinate branch only if he were acting
in his capacity as the executive branch’s chief officer—i.e., in
his official capacity as President. Put in the alternative, he
could not work an executive branch intrusion on another
branch’s domain if he were acting in an unofficial, private
capacity: in that event, he would be acting as a private person
lacking any authority over the executive branch, not as the
branch’s chief officer. In short, the President acts in an official45
capacity cloaked with the protections of immunity when he
allegedly perpetrates an infringement of the separation of
powers, but he lacks any such ability to violate the separation
of powers when acting in the kind of private, unofficial
capacity for which immunity is unavailable.
By way of illustration, consider “[p]erhaps the most
dramatic example” of a President found to have exceeded the
executive branch’s authority in a manner encroaching on
Congress’s domain. Clinton, 520 U.S. at 703 (discussing
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952)). Youngstown Sheet & Tube Co. v. Sawyer involved a
challenge to President Truman’s executive order directing the
Secretary of Commerce to seize and operate the nation’s steel
mills at the height of the Korean War. 343 U.S. at 582. The
Supreme Court rejected that assertion of presidential power,
holding that “[t]he Founders of this Nation entrusted the
lawmaking power to the Congress alone in both good and bad
times.” Id. at 589; cf. id. at 635–37 (Jackson, J., concurring).
But while President Truman was found to have gone
beyond the limits of his branch’s authority into the province of
a coordinate branch, he did so in an exercise of official
responsibility, as to which immunity from civil damages
liability would attach. Indeed, the Supreme Court, in the
course of later denying immunity to President Clinton,
described President Truman’s challenged order in Youngstown
as an example of “when the President takes official action.”
Clinton, 520 U.S. at 703. So, whereas the Supreme Court
would treat President Truman’s act as official even though it
encroached on a coordinate branch’s domain, the plaintiffs’
approach would treat it as unofficial—and, it follows,
unprotected by official-act immunity in a civil damages suit.46
The plaintiffs might perceive Youngstown as different
from this case on a theory that President Trump affirmatively
obstructed Congress, something President Truman did not do.
But the Youngstown framework treats all presidential action
interfering with the “expressed or implied will of Congress” the
same—i.e., as falling at the “lowest ebb” of a President’s
authority, but still fully eligible for treatment as official action
for purposes of presidential immunity. See Zivotofsky v. Kerry,
576 U.S. 1, 10 (2015) (quoting Youngstown, 343 U.S. at 637
(Jackson, J., concurring)). And we see no reliable,
administrable criteria for predictably identifying when
presidential action might amount to obstruction of a coordinate
branch as opposed to something less. That is particularly so
when, as here, the extent to which a President’s challenged
actions ultimately interfere with a coordinate branch depends
on how third parties respond to the President. Insofar as those
kinds of third-party reactions may be difficult to predict—as
could well be the case in the charged contexts in which
presidential immunity can be in issue—a President might
hesitate to act with the conviction and dispatch that official-act
immunity aims to secure. See Nixon, 457 U.S. at 752–53.
Under the plaintiffs’ theory, moreover, the availability of
presidential official-act immunity would turn on the legality of
the President’s actions—specifically, on whether the actions
flouted the separation of powers by intruding on a coordinate
branch. But Nixon forecloses a legality-centered approach of
that sort. Recall that the Supreme Court rejected the suggestion
that, because President Nixon had unlawfully discharged
Fitzgerald without adequate cause, he had necessarily acted
beyond the outer perimeter of his official functions. Nixon, 457
U.S. at 756. Withholding immunity on that basis, the Court
explained, “would subject the President to trial on virtually
every allegation that an action was unlawful,” which in turn
“would deprive absolute immunity of its intended effect.” Id.47
Those concerns apply to an alleged violation of the
separation of powers no less than to any other alleged violation
of law. In fact, the more uncertain the lawfulness of
prospective official action, the more pronounced the need for
(and effect of) granting official-act immunity. On that register,
immunity for separation-of-powers violations rates quite high,
for “the lines between the powers of the three branches are not
always neatly defined.” Clinton, 520 U.S. at 701. For that
reason as well, we are unmoved by the plaintiffs’ argument for
a denial of immunity based on President Trump’s ostensible
infringement of the separation of powers.
2.
Like the plaintiffs, the government puts forward an
argument for affirming the denial of immunity to President
Trump that does not adequately correlate with whether he took
the actions alleged in the complaints in his official capacity as
President or in his private capacity as presidential candidate.
In fact, the central object of the government’s proposed
approach is to avoid the need to apply that distinction. See
Gov’t. Br. 16, 22. We appreciate the government’s submission
of its views in response to our invitation to share the executive
branch’s perspective on the proper resolution of this appeal, but
we decline to adopt the government’s suggested approach.
The government’s proposed approach is highly fact-
specific, turning on the particular grounds advanced (and not
advanced) by President Trump on appeal. The government
seizes on President Trump’s argument that speech on matters
of public concern, as a categorical matter, is an official
presidential function. That argument, the government reasons,
assumes that a President would be afforded immunity even if
his speech amounts to incitement of imminent private violence.
The government proposes that we reject President Trump’s48
argument for immunity by exploiting that assumption, because,
in the government’s view, incitement of imminent private
violence by definition lies outside a President’s official
functions. And the government suggests that we simply
assume that President Trump’s conduct fits within that
category of ostensibly non-immune activity, the boundaries of
which the government would define by reference to First
Amendment standards marking unprotected incitement as set
out in Brandenburg v. Ohio, 395 U.S. 444 (1969).
As an initial matter, the government’s suggested approach
could lead to our denying immunity to President Trump based
on an assumption that turns out to be false—indeed, an
assumption that President Trump has already contested. The
government asks us to assume for purposes of this appeal (but
not actually decide) that President Trump’s speech on January
6 and in the leadup to that day falls outside the First
Amendment’s protections because it amounts to incitement of
imminent lawless action under Brandenburg. We could so
assume only because that First Amendment question is not
presently before us, since President Trump opted not to seek
appellate review on the issue at this time. See 28 U.S.C.
§ 1292(b). If his First Amendment claim were before us, we
would need to engage it on the merits rather than assume its
rejection. The issue, though, remains in the case and could
come before us at a later stage. So if we were to accept the
government’s suggested approach, we might resolve the
question of President Trump’s immunity based on an assumed
answer to his First Amendment claim that perhaps could—
depending on its ultimate resolution, the merits of which we do
not now assess in any way—fail to stand up in the end.
As for the substantive merits of the government’s
proposed approach, it aligns the scope of a President’s official-
act immunity with the scope of protected speech under the FirstAmendment. There is no evident precedent for that kind of
approach, and the fit seems an uneasy one. The considerations
that inform whether a President is engaged in the discharge of
official duties—the relevant question for purposes of
presidential immunity—bear no necessary relation to the
considerations that inform whether a President’s speech would
fall within the First Amendment’s protections. The two
inquiries serve distinct purposes, and in some sense appear to
work at cross purposes. At a high level, the President is
immune when he acts in his official capacity—i.e., as the
government rather than as a private person—whereas the First
Amendment protects private persons against restraints imposed
by the government. It is unclear why the existence of official-
act immunity’s protections for acting as the government should
turn on the existence of First Amendment protections against
the government.
In operation, the government’s proposed approach would
tend to confer presidential immunity when it is least needed
while withholding it when it is most needed. As to the former,
if the President’s speech falls within the First Amendment’s
protections, the government’s approach would preserve
presidential immunity. But if the First Amendment protects the
President’s speech, that protection would foreclose the
possibility of civil damages based on the speech regardless of
presidential immunity. See, e.g., Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 55–56 (1988). In that situation, then, the
President would have little need for the protection that official-
act immunity would afford.
Conversely, if the President’s speech falls outside the First
Amendment’s protections because it amounts to incitement,
the government’s proposed approach would leave the President
without official-act immunity even if it otherwise seems
apparent that the speech was delivered in an official capacity—
50
e.g., in the State of the Union address. And while the
government specifically focuses on incitement, there are other
types of unprotected speech, too, such as defamation. See
United States v. Stevens, 559 U.S. 460, 468–69 (2010). We see
no conceptual basis for confining a theory that would render
immunity unavailable when the First Amendment is
unavailable to one type of unprotected speech alone. So, the
President would be denied immunity not just for incitement,
but also for defamation (or other types of unprotected
expression). And when the President engages in speech
amounting to incitement or defamation, he not only removes
himself from the First Amendment’s protections, but he also
subjects himself to the prospect of damages suits—the situation
in which official-act immunity is salient. E.g., Milkovich v.
Lorain J. Co., 497 U.S. 1, 11 (1990) (civil action for
defamation); cf. Falwell, 485 U.S. at 56 (intentional infliction
of emotional distress); see also Blassingame Compl. ¶¶ 180–
89, J.A. 59–60 (inciting to riot); Swalwell Compl. ¶¶ 192–200,
208–20, J.A. 120–22, 123–26. (inciting to riot and inciting
assault).
The government would accept that result because it
considers incitement (and presumably other categories of
similarly unprotected speech) to be categorically unofficial.
But it is possible that a President, in exhorting the public to
action on a cause considered essential or in responding to a
reporter’s question at a White House press briefing about
criticism directed at the President, might speak in a manner
testing the potentially indistinct lines dividing protected from
unprotected speech: “incitement to disorder,” the Supreme
Court recently observed, “is commonly a hair’s-breadth away
from political ‘advocacy.’” Counterman v. Colorado, 143 S.
Ct. 2106, 2118 (2023) (quoting Brandenburg, 395 U.S. at 447);
see also NAACP v. Claiborne Hardware Co., 458 U.S. 886,
927 (1982); cf. Jones v. Clinton, 72 F.3d 1354, 1359 n.7 (8th
51
Cir. 1996), aff’d on other grounds, 520 U.S. 681 (1997)
(alleging defamation “by Mr. Clinton’s presidential press
secretary while Mr. Clinton was President”).
The government’s suggested approach would deny
official-act immunity if a President’s borderline speech falls on
the wrong side of that potentially elusive divide. But immunity
cannot serve its intended purpose if it is withheld when a
President would need it most—i.e., when a President might
refrain from undertaking some course of official action because
of uncertainty about whether it could give rise to damages
liability. To that end, Nixon, as explained, rejected as unduly
constraining the proposition that a President’s official-act
immunity is coextensive with the legality of his actions. See
457 U.S. at 756. Yet that would be the upshot of an approach
that would deny immunity if the President’s speech falls
beyond the First Amendment’s protections.
All told, we see no sound basis for categorically excluding
unprotected speech from the protections of presidential
official-act immunity—and little affirmative reason for doing
so. We therefore decline to accept the government’s proposed
approach.
III.
While we affirm the district court’s denial of President
Trump’s claim of official-act immunity at the current stage of
the proceedings, that does not mean the proceedings now
instantly move ahead to engage with the merits of the plaintiffs’
claims. President Trump moved to dismiss the claims against
him on grounds of official-act immunity based on the
allegations in the complaints, and at the motion-to-dismiss
stage, those allegations are assumed to be true. He thus has had
no opportunity to dispute the plaintiffs’ allegations bearing on
the immunity question or to introduce his own facts pertaining
52
to the issue. He must be afforded that opportunity before the
proceedings can move ahead to the merits, including before any
merits-related discovery.
Official immunity, including the President’s official-act
immunity, is “immunity from suit rather than a mere defense to
liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It is
“an entitlement not to stand trial or face the other burdens of
litigation.” Id. And as we have made clear, “[d]iscovery is
itself one of the burdens from which defendants are sheltered”
by official immunity. Martin, 812 F.2d at 1430 (collecting
cases). The importance of shielding officials from the burden
of unwarranted discovery is among the reasons the Supreme
Court has “repeatedly . . . stressed the importance of resolving
immunity questions at the earliest possible stage in litigation.”
Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting
Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
Those concerns are particularly pronounced when the official
claiming immunity from suit is the President. See generally
Nixon, 457 U.S. at 749–53.
While President Trump therefore must be afforded an
opportunity to resolve his immunity claim before merits
discovery, discovery bearing on the immunity question itself
might be in order if the circumstances warrant it. The Supreme
Court has recognized that discovery “tailored specifically to the
question of” immunity may be merited when there is a need to
develop facts or resolve factual disputes to facilitate deciding a
threshold question of immunity. Anderson v. Creighton, 483
U.S. 635, 646–47 n.6 (1987). President Trump may of course
move for summary judgment on his immunity claim, and the
district court may rule on any such motion once the factual
record on the issue is sufficiently developed. Cf. Kartseva v.
Dep’t of State, 37 F.3d 1524, 1530 n.21 (D.C. Cir. 1994)
(“[W]here the parties present a factual dispute about the
53
challenged conduct, and the merits of the qualified immunity
question turn on that dispute, ‘discovery may be necessary
before [a] motion for summary judgment on qualified
immunity grounds can be resolved.’” (second alteration in
original) (quoting Anderson, 483 U.S. at 646–47 n.6)).
At the summary-judgment stage—and throughout—
President Trump bears the burden of establishing that he is
entitled to official-act immunity. As a general matter, “[t]he
burden of justifying absolute immunity rests on the official
asserting the claim.” Harlow v. Fitzgerald, 457 U.S. 800, 812
(1982); accord Banneker, 798 F.3d at 1140. There is no
evident reason to apply any different approach in the context of
presidential immunity. In Nixon, the Supreme Court
characterized a President’s official-act immunity as a
“defense” that President Nixon had “claimed,” 457 U.S. at 741,
and the Court nowhere suggested the need for any President-
specific exception to the “general rule” that a defendant must
“plead and prove . . . a defense,” Taylor v. Sturgell, 553 U.S.
880, 907 (2008). Accordingly, in Jones v. Clinton, the court of
appeals held that President Clinton bore the burden of
establishing his entitlement to presidential immunity, 72 F.3d
at 1361, a conclusion the Supreme Court did not address or
revisit in its decision in the case.
Although President Trump must demonstrate his
entitlement to immunity, that burden will be met if, based on
an appropriately objective, context-specific assessment, his
alleged actions can reasonably be understood as the official
actions of an office-holder rather than the unofficial actions of
an office-seeker. See pp. 34–37, supra. In other words, is it
reasonable to think he was exercising his official
responsibilities as President, or was he instead engaging in re-
election campaign activity as a presidential candidate? The
complaints contain factual allegations potentially bearing on
54
the issue—for instance, that the January 6 rally was “organized
in part by Trump’s former campaign staff” and “arranged and
funded by a small group including a top Trump campaign
fundraiser and donor,” Blassingame Compl. ¶ 59, J.A. 38
(quotation marks and citation omitted), or “was organized and
funded by Trump’s campaign organization,” Swalwell Compl.
¶ 97, J.A. 98. President Trump appears to deny those accounts
as a factual matter, having asserted in the district court that “the
January 6th rally is in no way related to the campaign; . . . the
campaign doesn’t pay [] for it; the campaign is not involved
with it at all.” J.A. 327.
Those sorts of considerations and others would inform the
assessment and ultimate resolution of President Trump’s claim
of official-act immunity in the proceedings to come in the
district court, insofar as he continues to press that defense. As
for the appeal presently before us, we affirm the district court’s
denial of President Trump’s motion to dismiss on grounds of
presidential immunity, and we leave it to that court to conduct
further proceedings on the issue as desired and warranted.
For the foregoing reasons, we affirm the district court’s denial of President Trump’s motion to dismiss the claims against him on grounds of presidential immunity.
So ordered
