Professional Documents
Culture Documents
Gov Uscourts Cadc 38510 2029472 0
Gov Uscourts Cadc 38510 2029472 0
No. 22-5069
v.
DONALD J. TRUMP,
APPELLANT
2
Barnes, Matthew Kaiser, Sarah R. Fink, Cameron Kistler,
Erica Newland, Kristy Parker, Helen E. White, Genevieve C.
Nadeau, and Benjamin L. Berwick.
3
official-act immunity is to assure that he can fearlessly and
impartially discharge the singularly weighty duties of the
office.
4
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.
5
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.
6
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.
7
I.
A.
1.
8
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.
9
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.
10
b.
11
159. 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.
12
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.
13
At the outset of his speech, President Trump proclaimed
that “[a]ll of us here today do not want to see our election
victory stolen by emboldened radical left Democrats, which is
what they’re doing, and stolen by the fake news media. That’s
what they’ve done and what they’re doing. We will never give
up. We will never concede. It doesn’t happen. You don’t
concede when there’s theft involved.” He then proceeded to
allege election fraud in various battleground states and to call
on Republicans in Congress and Vice President Pence to “do
the right thing” and to send the election back to the states. He
alleged that there had been “fraud on a scale never seen
before,” and detailed, at length, allegations of fraud in several
battleground states won by then-President-elect Biden. He
urged that “[w]e’re going to have to fight much harder and
Mike Pence is going to have to come through for us.”
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.”
d.
15
Blassingame Compl. ¶¶ 79, 94, J.A. 42, 44–45; Thompson
Compl. ¶ 106, J.A. 168.
16
struck Officer Blassingame with fists and weapons and
subjected him to racial epithets and threats. Blassingame
Compl. ¶¶ 95–113, J.A. 45–47.
B.
1.
17
from President Trump. Blassingame Compl., J.A. 67–68;
Swalwell Compl., J.A. 132–33; Thompson Compl., J.A. 201.
18
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.
19
U.S.C. § 1292(b), so his potential entitlement to a dismissal on
First Amendment grounds is not before us in this appeal.
II.
A.
20
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.
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).
22
In that case, Paula Jones sought civil damages from President
William J. Clinton. 520 U.S. at 684–85. She alleged that
President Clinton, while serving as Governor of Arkansas, had
made unwelcome sexual advances towards her and then
retaliated against and later defamed her for rejecting his
advances. Id. at 685. President Clinton moved to dismiss,
arguing that as President, he was entitled to temporary
immunity from the lawsuit until after his presidency. Id. at
686–87. The Court disagreed, reasoning that President
Clinton’s alleged actions—with the potential exception of
allegedly defamatory statements made after he became
President, see id. at 686 & n.3—were “unrelated to any of his
official duties as President of the United States and, indeed,
occurred before he was elected to that office,” id. at 686.
23
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.
1.
24
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.
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.
26
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.
27
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.
b.
28
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.
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.
30
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).
31
candidate, whereas the former President would get no
immunity for precisely the same campaign speech.
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.
33
/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].
34
so fell “well within the scope of ordinary presidential action”
entitled to immunity. Id. at 4.
c.
35
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.
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.
37
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.
38
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.
39
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.
40
/briefings-statements/remarks-president-trump-salute-america
[https://perma.cc/YV6J-F82P]; Salute to America, The White
House, https://trumpwhitehouse.archives.gov/salutetoamerica
[https://perma.cc/GK67-JMLS] (last visited Nov. 18, 2023);
see also Trump White House Archived, Salute to America 2019
– Lincoln Memorial, YouTube (July 5, 2019),
https://www.youtube.com/watch?v=wgL0v9sJ0ZM
[https://perma.cc/9335-JGJG]. The White House also
promoted the event on its official Twitter account. See, e.g.,
@WhiteHouse45, Twitter (July 3, 2019, 6:01 PM), https://
twitter.com/WhiteHouse45/status/1146539367269359618
[https://perma.cc/3XJW-N7UZ]. And, finally, a number of
government officials attended the event (as was noted in the
President’s remarks, see Remarks by President Trump at the
2019 Salute to America, supra), some of whom could have
violated federal law by attending it if it were a campaign event,
see 5 U.S.C. § 7324.
41
2.
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.
43
1.
44
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.
45
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.
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.
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.
48
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).
49
Amendment. 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.
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).
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”).
III.
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.
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)).
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.
* * * * *
So ordered.
USCA Case #22-5069 Document #2029472 Filed: 12/01/2023 Page 55 of 67
2
The parties present us with stark, categorical alternatives.
President Trump’s primary contention is that whenever a
sitting President speaks on a matter of public concern, the
speech is official enough for immunity to attach. The plaintiffs
respond that immunity can attach only to speech made in
furtherance of a presidential power specifically enumerated in
Article II of the Constitution. The Court rightly rejects both
positions.
3
As to the former, the President does not always act in an
official capacity when he speaks on matters of public concern.
To take a few trivial examples, the President acts unofficially
when he speaks with a first cousin, an old college friend, a
business associate, or the teachers of his school-age children—
even if they happen to discuss matters of public concern. And
as relevant here, the President acts unofficially when he speaks
as a candidate. Immunity attaches to functions of presidential
action, not to the individual occupying the Office of the
President. See Clinton v. Jones, 520 U.S. at 694–95.
4
the President’s views of good politics as opposed to good
policy. Ante, at 35. As a general matter, motive-based
inquiries are “highly intrusive” and thus inappropriate for
scoping out immunity, even in cases involving plausible
allegations that the President has acted for some
unconstitutional purpose. See Nixon v. Fitzgerald, 457 U.S. at
756. Moreover, a motive-based inquiry would be even more
unsound to separate official presidential action from the
unofficial actions of a mere candidate for re-election.
Presidents routinely take political considerations into account
in their official acts, which is the intended goal of a
Constitution establishing the presidency as an elected and thus
democratically accountable office.
5
with the entire “executive Power” of the United States, U.S.
Const. Art. II, § 1, cl. 1, he must “take Care that the Laws be
faithfully executed,” id. § 3, cl. 1, and must supervise over four
million subordinates in the process, see Seila Law LLC v.
CFPB, 140 S. Ct. 2183, 2191 (2020). Absent a disability
established by formal executive action under the Twenty-Fifth
Amendment, he must always remain “ready, at a moment’s
notice, to do whatever it takes to preserve, protect, and defend
the Constitution and the American people.” Amar & Katyal,
Executive Privileges and Immunities: The Nixon and Clinton
Cases, 108 Harv. L. Rev. 701, 713 (1995). Unless speaking at
some specific campaign or political event, he will thus likely
be “clothed in the trappings” of his Office—whether in the
West Wing, in the Executive Residence, on Air Force One, at
Camp David, at his own private residence, visiting foreign
dignitaries, or even on a working vacation. In these contexts,
his speech on matters of public concern will likely be official.
(I do not address here the distinct question whether the
President in these settings may choose to speak on public
matters in a purely private capacity. Cf. Knight First Amend.
Inst. v. Trump, 928 F.3d 226 (2d Cir. 2019), vacated as moot
sub nom. Biden v. Knight First Amend. Inst., 141 S. Ct. 1220
(2021).) And critically, if it is unclear whether the presidential
speech is official, the Court appropriately preserves the
immunity. Ante, at 37.
6
a defamation lawsuit. Or recall the iconic image of President
Bush reading a book to schoolchildren on September 11, 2001,
when an aide whispered to him that America was under attack.
Had that event been a political rather than an official event, and
had the President immediately responded with an off-the-cuff
statement to rally or console the Nation, I have little doubt that
the response would have been official. Despite the Court’s
emphasis on the formal “trappings” of an event, id., its
contextual approach does not foreclose consideration of the
constitutional and practical imperative that the President must
be able to engage in official business on a moment’s notice,
even when speaking at campaign events.
I.
2
official capacity: (1) speaking on matters of public concern and
(2) the constitutional duty to “take Care that the Laws be
faithfully executed,” U.S. CONST. art. II, § 3. On appeal, he
does not dispute that at these times he was acting as a candidate
for reelection. See Appellant’s Br. at 8-10. Both contentions
are unpersuasive.
A.
3
official acts — not to criminal acts or acts taken in a personal
capacity. See id. at 749, 754; Clinton, 520 U.S. at 693-95.
4
outcome of the 2020 presidential election and election integrity
generally. Yet because not all speech on matters of public
concern serves an official function, the district court correctly
inquired into what purpose that speech was serving: was
President Trump engaged in the performance of an official act,
or was he carrying out some other function outside the scope of
official duty? See Dist. Ct. Op. at 33. That determination, as
the court emphasizes, requires a close look at the specific acts
alleged to determine whether they were performed in the course
of furthering an official presidential function. Op. Pt. II.B.1.b.
The Supreme Court’s reasoning supports a functional analysis,
see Clinton, 520 U.S. at 692-93, as does this court’s treatment
of absolute immunity in Banneker, 798 F.3d at 1140. In
Banneker, the court focused on the “relationship between ‘the
act complained of’ and the corresponding ‘matters committed
by law to [the official’s] control or supervision.’” Id. at 1141
(quoting Barr v. Matteo, 360 U.S. 564, 573 (1959)). See also
Dist. Ct. Op. at 36.
5
immediately after January 6th did President Trump identify a
constitutional or statutory provision in accordance with which
he was purporting to exercise an officially designated
presidential duty. Under the circumstances, it is unnecessary
to inquire into the President’s motives in order to conclude that
his actions did not constitute an official function of his office.
See Nixon, 457 U.S. at 756-57.
B.
6
speech, or his failure to act promptly when the Capitol was
breached. See Dist. Ct. Op. at 29-30.
II.
7
the sole issue now on appeal. The court has no occasion to
define a “framework” of analysis for the district court on
remand and acknowledges that its framework does not apply
now. See Op. Pt. II.B.1.c. The Supreme Court’s framework in
Nixon and Clinton suffices. See Op. Pt. II.A. Similarly, the
court has no occasion to address additional contentions of the
plaintiffs, Op. Pt. II.C.1, nor the contention by the United States
in response to the request for its views, Op. Pt. II.C.2; Order
(Dec. 20, 2022). Those contentions may become relevant
during the district court’s continued consideration of the
parties’ arguments but they are not yet before this court.