On Friday, a unanimous D.C. Circuit panel held (in Blassingame v. Trump) that Capitol Hill police officers and members of Congress who sued former president Donald Trump for damages for harms they allege they suffered from the January 6, 2021, riot at the Capitol may continue to pursue their claims against him. Specifically, the panel ruled that Trump has not yet established that the actions they complain of were his “official acts” as president such that they would entitle him to absolute immunity from civil damages.
D.C. Circuit chief judge Sri Srinivasan wrote the 54-page lead opinion.
Judge Gregory Katsas—who, it’s worth noting, was deputy White House counsel during President Trump’s first year in office and whom Trump appointed to his judicial seat—joined Srinivasan’s opinion in its entirety and also wrote a brief concurring opinion that “offer a few thoughts elaborating on [Srinivasan’s] handiwork.” Judge Judith Rogers wrote a brief opinion concurred in part: she agreed with Srinivasan’s analysis of what she regarded as the “sole issue before the court” but objected to parts of the opinion that she regarded as “premature and unenforceable dictum.” (Barack Obama appointed Srinivasan; Bill Clinton appointed Rogers.)
Srinivasan’s opinion is very narrow and thorough. I’ll excerpt key portions here (and, for ease of reading, omit ellipses):
Nixon [v. Fitzgerald (1982)] established a President’s absolute immunity from civil damages claims predicated on his official acts. 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 (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.
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.
The sole issue before us [on Trump’s motion to dismiss] 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.
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.
In his concurrence, Katsas praises Srinivasan’s opinion:
In sum, the Court’s approach is well-tailored to identify campaign speech that can reasonably be viewed only as unofficial. It does not threaten to strip immunity from other kinds of presidential speech. It is flexible enough to accommodate rare cases where even speech made during a campaign event may be official. And it is cautious, in leaving open both the question whether the speech at issue is entitled to immunity and, if not, whether the First Amendment nonetheless protects it.
On a quick review, I offer only one criticism of Srinivasan’s opinion: to my great surprise, he repeatedly refers, dozens and dozens of times, to Donald Trump as “President Trump” when he is discussing actions that Trump took after his presidency ended, including arguments that Trump is making in this case. E.g.:
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.
To be clear: I think it entirely proper to refer to Donald Trump as “President Trump” when describing actions that he took while president (whether or not those actions were official presidential acts). E.g.: “President Trump did not concede.” But Donald Trump is no longer president, and I find it bizarre to refer to him as “President Trump” when presenting his legal arguments in this case. “Mr. Trump” or “former President Trump” or simply “Trump” should suffice.
I see that the Supreme Court in its 1982 ruling in Nixon v. Fitzgerald refers repeatedly to “petitioner Nixon.” (In the only instances in which it speaks of “President Richard Nixon” or refers to him as “the President,” it is describing actions that he took while president.)
I would say the same with respect to any former president, at least in a judicial opinion. But I highlight this point in part because there appears to be a legion of Trump sycophants and election-deniers who always refer to him as “President Trump.” I can’t fathom why Srinivasan does.