# Thompson v. Trump

> District Court, District of Columbia · February 18, 2022

URL: https://www.frixlaw.com/law-library/cases/6309958

## Case

- **Court:** District Court, District of Columbia
- **Decided:** February 18, 2022
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Amit P. Mehta
- **Nature of suit:** Civil
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6309958

## How later opinions describe it (automated extraction)

- stating the arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern”
- stating that, when a case involves a political question, “a court lacks the authority to decide the dispute”

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

_________________________________________
)
BENNIE G. THOMPSON et al., )
)
Plaintiffs, )
)
v. ) Case No. 21-cv-00400 (APM)
)
DONALD J. TRUMP et al., )
)
Defendants. )
_________________________________________ )
_________________________________________
)
ERIC SWALWELL, )
)
Plaintiff, )
)
v. ) Case No. 21-cv-00586 (APM)
)
DONALD J. TRUMP et al., )
)
Defendants. )
_________________________________________ )
_________________________________________
)
JAMES BLASSINGAME & )
SIDNEY HEMBY, )
)
Plaintiffs, )
)
v. ) Case No. 21-cv-00858 (APM)
)
DONALD J. TRUMP, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

January 6, 2021 was supposed to mark the peaceful transition of power. It had been that

way for over two centuries, one presidential administration handing off peacefully to the next.

President Ronald Reagan in his first inaugural address described “the orderly transfer of authority”

as “nothing less than a miracle.” 1 Violence and disruption happened in other countries, but not

here. This is the United States of America, and it could never happen to our democracy.

But it did that very afternoon. At around 1:30 p.m., thousands of supporters of President

Donald J. Trump descended on the U.S. Capitol building, where Congress had convened a Joint

Session for the Certification of the Electoral College vote. The crowd had just been at the Ellipse

attending a “Save America” rally, where President Trump spoke. At the end of his remarks, he

told rally-goers, “we fight, we fight like hell, and if you don’t fight like hell, you’re not going to

have a country anymore.” The President then directed the thousands gathered to march to the

Capitol—an idea he had come up with himself. About 45 minutes after they arrived, hundreds of

the President’s supporters forced their way into the Capitol building. Many overcame resistance

by violently assaulting United States Capitol Police (“Capitol Police”) with their fists and with

weapons. Others simply walked in as if invited guests. As Capitol Police valiantly fought back

and diverted rioters, members of Congress adjourned the Joint Session and scrambled to safety.

1
President Reagan said on that day:

To a few of us here today, this is a solemn and most momentous occasion; and
yet, in the history of our Nation, it is a commonplace occurrence. The orderly
transfer of authority as called for in the Constitution routinely takes place as it has
for almost two centuries and few of us stop to think how unique we really are. In
the eyes of many in the world, this every-4-year ceremony we accept as normal is
nothing less than a miracle.

President Ronald W. Reagan, First Inaugural Address (Jan. 20, 1981), https://www.reaganfoundation
.org/media/128614/inaguration.pdf (last visited Feb. 17, 2022).

2
So, too, did the Vice President of the United States, who was there that day in his capacity as

President of the Senate to preside over the Certification. Five people would die, dozens of police

officers suffered physical and emotional injuries and abuse, and considerable damage was done to

the Capitol building. But, in the end, after law enforcement succeeded in clearing rioters from the

building, Congress convened again that evening and certified the next President and Vice President

of the United States. The first ever presidential transfer of power marred by violence was over.

These cases concern who, if anyone, should be held civilly liable for the events of

January 6th. The plaintiffs in these cases are eleven members of the House of Representatives in

their personal capacities and two Capitol Police officers, James Blassingame and Sidney Hemby

(“Blassingame Plaintiffs”). Taken together, they have named as defendants: President Trump; the

President’s son, Donald J. Trump Jr.; the President’s counsel, Rudolph W. Giuliani; Representative

Mo Brooks; and various organized militia groups—the Proud Boys, Oath Keepers, and Warboys—

as well as the leader of the Proud Boys, Enrique Tarrio.

Plaintiffs’ common and primary claim is that Defendants violated 42 U.S.C. § 1985(1), a

provision of a Reconstruction-Era statute known as the Ku Klux Klan Act of 1871. The Act was

aimed at eliminating extralegal violence committed by white supremacist and vigilante groups like

the Ku Klux Klan and protecting the civil rights of freedmen and freedwomen secured by the

Fourteenth Amendment. Section 1985(1) is not, however, strictly speaking a civil rights provision;

rather, it safeguards federal officials and employees against conspiratorial acts directed at

preventing them from performing their duties. It provides:

If two or more persons in any State or Territory conspire to prevent,
by force, intimidation, or threat, any person from accepting or
holding any office, trust, or place of confidence under the United
States, or from discharging any duties thereof; or to induce by like
means any officer of the United States to leave any State, district, or
place, where his duties as an officer are required to be performed, or

3
to injure him in his person or property on account of his lawful
discharge of the duties of his office, or while engaged in the lawful
discharge thereof, or to injure his property so as to molest, interrupt,
hinder, or impede him in the discharge of his official duties.

42 U.S.C. § 1985(1). The statute, in short, proscribes conspiracies that, by means of force,

intimidation, or threats, prevent federal officers from discharging their duties or accepting or

holding office. A party injured by such a conspiracy can sue any coconspirator to recover damages.

Id. § 1985(3).

Plaintiffs all contend that they are victims of a conspiracy prohibited by § 1985(1). They

claim that, before and on January 6th, Defendants conspired to prevent members of Congress, by

force, intimidation, and threats, from discharging their duties in connection with the Certification

of the Electoral College and to prevent President-elect Joseph R. Biden and Vice President–elect

Kamala D. Harris from accepting or holding their offices. More specifically, they allege that,

before January 6th, President Trump and his allies purposely sowed seeds of doubt about the

validity of the presidential election and promoted or condoned acts of violence by the President’s

followers, all as part of a scheme to overturn the November 2020 presidential election. Those

efforts culminated on January 6th, when the President’s supporters, including organized militia

groups and others, attacked the Capitol building while Congress was in a Joint Session to certify

the Electoral College votes. Notably, Plaintiffs allege that President Trump’s January 6 Rally

Speech incited his supporters to commit imminent acts of violence and lawlessness at the Capitol.

Plaintiffs all claim that they were physically or emotionally injured, or both, by the acts of the

conspirators.

Plaintiffs advance other claims, as well. Swalwell alleges a violation of § 1986, a

companion provision to § 1985. 42 U.S.C. § 1986. That statute makes a person in a position of

power who knows about a conspiracy prohibited by § 1985, and who neglects or refuses to take

4
steps to prevent such conspiracy, liable to a person injured by the conspiracy. Swalwell claims

that President Trump, Trump Jr., Giuliani, and Brooks violated § 1986 by refusing to act to prevent

the violence at the Capitol. Swalwell and the Blassingame Plaintiffs also advance numerous

common law torts and statutory violations under District of Columbia law.

All Defendants have appeared except the Proud Boys and Warboys. Defendants have

moved to dismiss all claims against them. They advance a host of arguments that, in the main,

seek dismissal for lack of subject matter jurisdiction or for failure to state a claim. The parties

have submitted extensive briefing on a range of constitutional, statutory, and common law issues.

The court held a five-hour-long oral argument to consider them.

After a full deliberation over the parties’ positions and the record, the court rules as follows:

(1) President Trump’s motion to dismiss is denied as to Plaintiffs’ § 1985(1) claim and certain

District of Columbia–law claims and granted as to Swalwell’s § 1986 claim and certain District of

Columbia–law claims; (2) Trump Jr.’s motion to dismiss is granted; (3) Giuliani’s motion to

dismiss is granted; (4) the Oath Keepers’ motion to dismiss is denied; and (5) Tarrio’s motion to

dismiss is denied. Separately, Brooks has moved to substitute the United States as the proper party

under the Westfall Act. The court declines to rule on that motion and instead invites Brooks to

file a motion to dismiss, which the court will grant for the same reasons it has granted Trump Jr.’s

and Giuliani’s motions.

II. BACKGROUND

A. Facts Alleged

This summary of the alleged facts is drawn from the complaints in all three cases. There

is substantial overlap, but there are some differences. The court has not referenced every fact

alleged across the three complaints; this factual recitation is meant to summarize the main

5
allegations. Additionally, a citation to one complaint should not be understood to mean that the

allegation is not present in the other complaints. The court has limited the citations in the interest

of efficiency. Additional facts will be referenced as appropriate in the Discussion section.

As is required on a motion to dismiss, the court assumes these facts to be “true (even if

doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). These are not the

court’s factual findings.

1. The Weeks Following the Election

a. False claims of election fraud and theft

President Trump began to sow seeds of doubt about the validity of the November 2020

presidential election in the weeks leading up to Election Day. Am. Compl., Blassingame v. Trump,

No. 21-cv-00858 (APM) (D.D.C.), ECF No. 3 [hereinafter Blassingame Compl.], ¶ 13.

He claimed, among other things, that there would be “fraud,” the election was “rigged,” and his

adversaries were “trying to steal” victory from him. Id. ¶¶ 13, 16; Compl., Swalwell v. Trump,

No. 21-cv-00586 (APM) (D.D.C.), ECF No. 1 [hereinafter Swalwell Compl.]; Mot. for Leave to

File Am. Compl., ECF No. 11, Am. Compl., ECF No. 11-1, [hereinafter, Thompson Compl.],

¶ 33. 2

On election night, the President claimed victory before all the votes were counted. He

tweeted that “they are trying to STEAL the Election. We will never let them do it.” Blassingame

Compl. ¶ 17. He also would say in a primetime television address the next day, “If you count the

legal votes, I easily win. If you count the illegal votes, they can try to steal the election from us.”

Swalwell Compl. ¶ 33.

2
Subsequent citations to filings from these three dockets omit the case name and number. Context and/or the title of
the filing should make clear to which docket a particular filing belongs.

6
The President’s allies joined him in making similar claims. For example, on November 5,

2020, Brooks tweeted that he “lack[ed] faith that this was an honest election.” Id. ¶ 78.

On November 6, 2021, Trump Jr. tweeted that his father’s campaign was uncovering evidence of

voter fraud and that the media was creating a false narrative that voter fraud was not real. Id. ¶ 69.

On November 7, 2020, one of President Trump’s lawyers, Rudolph Giuliani, held a press

conference in suburban Philadelphia, during which he asserted that there was rampant voter fraud

in Philadelphia and Pittsburgh, which accounted for the President’s loss in Pennsylvania.

Thompson Compl. ¶ 38.

b. Efforts to influence state and local election officials

The President also took his case directly to state and local election officials. These

meetings occurred by phone and in person, and centered mostly on Georgia, Michigan, and

Pennsylvania. Swalwell Compl. ¶¶ 39, 45, 49, 52. In some instances, these efforts were followed

by threatening words and conduct by some supporters.

In Georgia, for example, the President called Georgia’s Secretary of State an “enemy of

the people” and tweeted about him over a dozen times. Swalwell Compl. ¶ 49. The Secretary and

his family were then targeted by some of the President’s supporters with threats of violence and

death. Id. ¶ 50. Another Georgia state official pleaded with the President to condemn death threats

made to election workers in Georgia, but he refused to do so. Blassingame Compl. ¶ 29.

In another instance, in Michigan, on December 5, 2020, the President falsely declared that

he had won almost every county in the state. Swalwell Compl. ¶ 40. The next day armed protesters

went to the home of Michigan’s Secretary of State, demanding she overturn the election results.

Thompson Compl. ¶ 50. During these weeks, the President also tweeted criticism of Republican

7
governors in Arizona and Georgia, claiming that “[i]f they were with us, we would have already

won both.” Swalwell Compl. ¶ 36.

During these efforts, and aware of the threats directed against state election officials, the

President tweeted, “People are upset, and they have a right to be.” Thompson Compl. ¶ 52.

The President’s allies, including Brooks and Giuliani, continued to support the President’s

campaign to undo the election results. Brooks, for example, tweeted false claims that President-

elect Joe Biden had not won Georgia, and he also announced that he would object to certifying the

Electoral College ballots from Georgia. Swalwell Compl. ¶ 82. Giuliani also continued his efforts,

falsely suggesting in mid-November that irregularities in Detroit were the reason for the

President’s loss. Thompson Compl. ¶ 42. He asked then–Deputy Secretary of Homeland Security

Ken Cuccinelli to seize voting machines. Swalwell Compl. ¶ 62. A Trump campaign attorney

even suggested that an election official should be shot. Thompson Compl. ¶ 48.

c. “Stop the Steal” rallies

Dozens of protests sprung up around the country. Blassingame Compl. ¶ 22. Two in

Washington, D.C., turned violent. On the evening of November 14, 2020, multiple police officers

were injured and nearly two dozen arrests were made. Id. ¶ 26. Then, on December 12, 2020,

supporters of the President clashed with District of Columbia police, injuring eight of them, which

led to over 30 arrests, many for acts of assault. Id. ¶ 28. The President was aware of these rallies,

as he tweeted about them, and he would have known about the violence that accompanied them.

Id. ¶¶ 25, 27.

Organized militia groups attended these events in Washington, D.C. One of them was the

Proud Boys. During a pre-election debate, the moderator asked whether President Trump would

denounce white supremacist groups. When the President asked, “[W]ho would you like me to

8
condemn?,” Vice President Biden suggested the “Proud Boys,” to which the President responded,

“Proud Boys, stand back, and stand by.” Thompson Compl. ¶ 30. Tarrio, the head of the Proud

Boys, tweeted in response, “Standing by sir.” Id.

Another militia group that came to Washington, D.C., for these rallies was the Oath

Keepers. At the December rally, an Oath Keepers leader told the assembled crowd, the President

“needs to know from you that you are with him, [and] that if he does not do it while he is

commander in chief, we’re going to have to do it ourselves later, in a much more desperate, much

more bloody war.” Id. ¶ 54.

2. Preparations for the January 6 Rally

On December 19, 2020, President Trump announced that there would be a rally in

Washington, D.C., on January 6th, the day of the Certification of the Electoral College: “Big

protest in D.C. on January 6th. Be there, will be wild!” Swalwell Compl. ¶ 86. The President and

his campaign were involved in planning and funding the rally. He participated in selecting the

speaker lineup and music, and his campaign made direct payments of $3.5 million to rally

organizers. Thompson Compl. ¶¶ 68–69. Significantly, the rally was not permitted for a march

from the Ellipse. Id. ¶ 90. The President and his campaign came up with the idea for a march to

the Capitol. Id. ¶ 69.

Pro-Trump message boards and social media lit up after the President’s tweet announcing

the January 6 Rally. Some followers viewed the President’s tweet as “marching orders.” One user

posted, referring to the President’s debate statement to the Proud Boys, “standing by no longer.”

Swalwell Compl. ¶ 88; Thompson Compl. ¶ 57. Other supporters explicitly contemplated

“[s]torm[ing] the [Capitol],” and some posted about “Operation Occupy the Capitol” or tweeted

using the hashtag #OccupyCapitols. Swalwell Compl. ¶ 89; Thompson Compl. ¶ 62.

9
The President knew that his supporters had posted such messages. He and “his advisors

actively monitored the websites where his followers made these posts.” Thompson Compl. ¶ 66.

News outlets, including Fox News, discussed them, as well. Id. On December 28, 2020, in widely

publicized remarks, a former White House aide predicted, “there will be violence on January 6th

because the president himself encourages it.” Id.

Trump’s allies also worked to promote the January 6 Rally. Trump Jr. posted a video on

Instagram asking his followers to “Be Brave. Do Something.” Swalwell Compl. ¶ 74. Giuliani

tweeted a video purporting to explain how Vice President Mike Pence could block the certification

of the election results. Id. ¶ 65. Brooks posted on social media on the eve of the rally that the

President “asked [him] personally to speak & tell the American people about the election system

weaknesses that the Socialist Democrats exploited to steal this election.” Id. ¶ 84.

At the same time, members of the Proud Boys and the Oath Keepers began their

preparations for the rally in earnest. On December 19 and 25, 2020, leaders of the Oath Keepers

announced that they had “organized an alliance” and “orchestrated a plan” with the Proud Boys.

Thompson Compl. ¶ 63. Tarrio said that the Proud Boys would turn out in “record numbers.” Id.

¶ 64. The groups also secured tactical and communications equipment. Id. ¶ 65. The Oath

Keepers recruited additional members and prepared them with military-style training. Id. ¶ 127.

3. January 6th—The Riot at the Capitol Building

The “Save America” rally on the Ellipse began at about 7:00 a.m. Blassingame Compl.

¶ 58. Brooks took the stage around 8:50 a.m. Swalwell Compl. ¶ 84. The Congressman said,

among other things, that “[w]e are great because our ancestors sacrificed their blood, their sweat,

their tears, their fortunes, and sometimes their lives,” and that “[t]oday is the day American patriots

start taking down names and kicking ass!” Id. ¶¶ 106, 108. After Brooks finished, Giuliani spoke.

10
He repeated that the “election was stolen” and said that it “has to be vindicated to save our

country.” Id. ¶ 113. Then, in the context of discussing how disputes over election fraud might be

resolved, he proclaimed, “Let’s have trial by combat!” Id. ¶ 114. Trump Jr. gave the last speech

before the President took to the podium. He spent much of his remarks claiming that the

Republican Party belongs to Donald Trump. He also warned Republican members of Congress,

“If you’re gonna be the zero, and not the hero, we’re coming for you, and we’re gonna have a good

time doing it.” Id. ¶¶ 117–119.

At about noon, President Trump took the stage. Id. ¶ 121. The court will discuss the

President’s speech in much greater detail later in this opinion, so recites only portions here. The

President spoke for 75 minutes, and during that time, he pressed the false narrative of a stolen

election. He suggested that Vice President Pence could return Electoral College ballots to the

states, allowing them to recertify Electors, which would bring about an election victory. He urged

rally-goers to “fight like hell,” and he told them that “you’re allowed to go by very different rules”

when fraud occurs. Swalwell Compl. ¶¶ 126, 128. Early in the speech he referenced a march to

the Capitol and said he knew the crowd would be going there to “peacefully and patriotically”

make their voices heard. An hour later, he punctuated his speech by saying that the election loss

“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.” Thompson Compl. ¶ 88. He then directed his supporters to the

Capitol. The crowd at various points responded, “Fight Like Hell. Fight for Trump,” and at other

points, “Storm the Capitol,” “Invade the Capitol Building,” and “Take the Capitol right now.”

Blassingame Compl. ¶ 61; Thompson Compl. ¶ 88. 3 Responding to the President’s call, thousands

marched to the Capitol building after he finished his remarks.

3
As discussed later, these Complaints make different allegations about the timing of these shouts and chants.

11
Meanwhile, Congress had convened a Joint Session at 1:00 p.m. to certify the Electoral

College vote. Thompson Compl. ¶ 93. Outside the building, some supporters already had begun

confrontations with Capitol Police. Even before the President’s speech had concluded, the Proud

Boys, operating in small groups, had begun to breach the outer perimeter of the Capitol.

Blassingame Compl. ¶ 66; Thompson Compl. ¶¶ 98–100. The Ellipse crowd began to arrive by

1:30 p.m. Blassingame Compl. ¶ 69. As their numbers grew, the crowd overwhelmed police and

exterior barriers and entered the Capitol by 2:12 p.m. Swalwell Compl. ¶ 134. The Oath Keepers

were among the crowd. Thompson Compl. ¶ 126. The Joint Session was suspended, and the Vice

President and members of Congress were evacuated. Id. ¶ 111; Swalwell Compl. ¶¶ 135–136.

Police officers, including the Blassingame Plaintiffs, were injured as violent confrontations

continued with the President’s supporters.

4. The President’s Response

After his speech, the President returned to the White House and watched the events at the

Capitol unfold on television. Thompson Compl. ¶ 106. Despite pleas from advisors and

Congressmen, the President did not immediately call on his supporters to leave the Capitol

building. Blassingame Compl. ¶¶ 114, 116; Thompson Compl. ¶ 123. At about 2:24 p.m., after

rioters had entered the Capitol, he sent a tweet critical of the Vice President for lacking “the

courage to do what should have been done to protect our Country and our Constitution.”

Blassingame Compl. ¶ 116. Eventually, two hours later, the President would tell his supporters to

stand down. He tweeted a video calling on them to “[g]o home. We love you. You’re very

special.” Id. ¶ 125.

The President sent one more tweet that day. After police had cleared the Capitol, around

6:00 p.m., the President said: “These are the things and events that happen when a sacred landslide

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election victory is so unceremoniously & viciously stripped away from great patriots who have

been badly & unfairly treated for so long. . . . Remember this day forever!” Id. ¶ 127.

The House of Representatives would later pass a single Article of Impeachment accusing

President Trump of “Inciting an Insurrection,” but the Senate would acquit him after he left office.

B. Procedural History

1. Thompson v. Trump

The Thompson case was the first to come before the court on February 16, 2021. See

Compl., ECF No. 1. The plaintiffs in that case are ten members of the House of Representatives. 4

Although the case is captioned Thompson v. Trump, the court will refer to these plaintiffs as the

“Bass Plaintiffs”—after the second named plaintiff, Representative Karen R. Bass—because the

lead plaintiff, Representative Bennie G. Thompson, voluntarily dismissed his claims after his

appointment to serve as the chair of the Select Committee to Investigate the January 6th Attack on

the United States Capitol. See Notice of Voluntary Dismissal, ECF No. 39. Although all are

elected officials, the Bass Plaintiffs have filed suit in their personal capacities. See Thompson

Compl.

The Bass Plaintiffs have named six defendants: President Trump, Giuliani, the Oath

Keepers, Proud Boys International, Warboys LLC, and Tarrio. Id. They assert a single claim

against all Defendants: a violation of 42 U.S.C. § 1985(1). Id. at 60. All Defendants except the

Proud Boys and Warboys have appeared and moved to dismiss the claim against them. See Def.

Oath Keepers’ Mot. to Dismiss, ECF No. 20 [hereinafter Thompson Oath Keepers’ Mot.]; Def.

Giuliani’s Mot. to Dismiss, ECF No. 21, Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, ECF

No. 21-1 [hereinafter Thompson Giuliani Mot.]; Def. Trump’s Mot. to Dismiss, ECF No. 22, Mem.

4
The plaintiffs are Representatives Karen R. Bass, Stephen I. Cohen, Veronica Escobar, Pramila Jayapal, Henry C.
Johnson, Jr., Marcia C. Kaptur, Barbara J. Lee, Jerrold Nadler, Maxine Waters, and Bonnie M. Watson Coleman.

13
in Supp. of Def. Trump’s Mot. to Dismiss, ECF No. 22-1 [hereinafter Thompson Trump Mot.];

Def. Tarrio’s Notice of Intention to Join Mots. to Dismiss, ECF No. 64.

2. Swalwell v. Trump

Representative Eric Swalwell filed his action on March 5, 2021, also in his personal

capacity. Swalwell Compl. He named as defendants President Trump, Trump Jr., Brooks, and

Giuliani. His Complaint advances a host of federal and District of Columbia–law claims against

all Defendants: (1) violation of § 1985(1) (Count 1); (2) violation of 42 U.S.C. § 1986 (Count 2);

(3) two counts of negligence per se predicated on violations of District of Columbia anti-rioting

and disorderly conduct criminal statutes (Counts 3 and 4); (4) violation of the District of Columbia

anti-bias statute, D.C. Code § 22-3701 et seq. (Count 5); (5) intentional infliction of emotional

distress (Count 6); (6) negligent infliction of emotional distress (Count 7); (7) aiding and abetting

common law assault (Count 8); and (8) negligence (Count 9). Id. at 45–62.

Each Defendant except Brooks has moved to dismiss all claims against him. See Def.

Giuliani’s Mot. to Dismiss, ECF No. 13, Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, ECF

No. 13-1 [hereinafter Swalwell Giuliani Mot.]; Defs. Trump & Trump Jr.’s Mot. to Dismiss, ECF

No. 14, Mem. in Supp. of Trump & Trump Jr.’s Mot. to Dismiss, ECF No. 14-1 [hereinafter

Swalwell Trump Mot.].

Brooks has moved for a scope-of-office certification under the Westfall Act, 28 U.S.C.

§ 2679. See Pet. to Certify Def. Mo Brooks Was Acting Within Scope of His Office or

Employment, ECF No. 20. Under the Westfall Act, if the Attorney General certifies that a tort

claim against an employee of government—including a member of Congress—arises from conduct

performed while “acting within the scope of his office or employment,” the United States is to be

substituted as the defendant. 28 U.S.C. § 2679(d)(1). Brooks asked the Attorney General for a

14
Westfall Act certification, but he declined the request. See U.S. Resp. to Def. Mo Brooks’s Petition

to Certify He Was Acting Within Scope of His Office or Employment, ECF No. 33 [hereinafter

U.S. Resp. to Brooks]. Notwithstanding the Attorney General’s denial, the Westfall Act authorizes

a court to make the requisite certification. See 28 U.S.C. § 2679(d)(3) (“In the event that the

Attorney General has refused to certify scope of office or employment under this section, the

employee may at any time before trial petition the court to find and certify that the employee was

acting within the scope of his office or employment.”). Brooks seeks such relief from the court.

3. Blassingame v. Trump

The third action is brought by James Blassingame and Sidney Hemby, two Capitol Police

officers who were on duty and injured on January 6th. They name only President Trump as a

defendant. Blassingame Compl. They advance numerous federal and District of Columbia–law

claims: (1) directing assault and battery (Count 1); (2) aiding and abetting assault and battery

(Count 2); (3) directing intentional infliction of emotional distress (Count 3); (4) two counts of

negligence per se predicated on violations of District of Columbia anti-rioting and disorderly

conduct criminal statutes (Counts 4 and 5); (5) punitive damages (Count 6); (6) violation of

§ 1985(1) (Count 7); and (7) civil conspiracy in violation of common law (Count 8). See id. at

36–48.

Defendant Trump has moved to dismiss all counts against him. Def. Trump’s Mot. to

Dismiss, ECF No. 10, Def.’s Mem. in Supp. of His Mot. to Dismiss, ECF No. 10-1 [hereinafter

Blassingame Trump Mot.].

4. The Motions to Dismiss

Defendants’ arguments for dismissal are the same across all three cases. Generally, all

Defendants contend the following: (1) Plaintiffs lack standing to sue under Article III of the

15
Constitution; (2) the First Amendment bars Plaintiffs’ claims; and (3) Plaintiffs have failed to state

claims under § 1985(1) and District of Columbia law. President Trump advances a number of

contentions that are specific to him: (1) he is absolutely immune from suit; (2) the political question

doctrine renders these cases nonjusticiable; (3) the Impeachment Judgment Clause bars civil suits

against a government official, like him, acquitted following impeachment; and (4) the doctrines of

res judicata and collateral estoppel premised on his acquittal by the Senate preclude all of

Plaintiffs’ claims.

The court held oral argument on January 10, 2022, on Defendants’ motions. See Hr’g Tr.,

ECF No. 63.

III. DISCUSSION

This section consists of two subparts: a discussion of (1) whether the court has subject

matter jurisdiction to hear these actions, and if it does, (2) whether Plaintiffs have stated cognizable

claims. The court begins, where it must, with determining whether it has jurisdiction to hear these

matters.

A. Subject Matter Jurisdiction

Defendants’ challenge to the court’s subject matter jurisdiction requires the court to make

four inquiries: (1) whether Plaintiffs have Article III standing to sue, (2) whether President Trump

enjoys absolute immunity from suit, (3) whether the cases present a political question that is

nonjusticiable as to President Trump, and (4) whether the claims against President Trump are

barred by the Impeachment Judgment Clause. 5 The court also addresses in this portion of the

5
President Trump raises another contention under the rubric of Article III standing but misclassifies it. He insists that
Swalwell and the Bass Plaintiffs cannot bring suit under § 1985(1) because such a claim “is only available to specific
federal officials,” which does not include members of Congress. Thompson Trump Mot. at 16. Therefore, he says,
“Plaintiffs are not of a class of individuals who have standing to bring a claim under § 1985(1).” Id. at 18 (emphasis
added). This type of argument is commonly referred to as “statutory standing.” See Lexmark Int’l, Inc. v. Static

16
opinion President Trump’s res judicata and collateral estoppel defenses, which, although not

jurisdictional in nature, logically fit here because they are premised on his acquittal following

impeachment.

The court holds that (1) all Plaintiffs have plausibly established Article III standing,

(2) President Trump is not absolutely immune from suit, except as to Swalwell’s § 1986 failure-

to-act claim (Count 2), (3) the political question doctrine does not bar the court’s review, (4) the

Impeachment Judgment Clause does not foreclose the claims against President Trump, and (5) the

doctrines of res judicata and collateral estoppel do not preclude litigation of the case or any claim

or fact against President Trump. The court takes up these issues in the order listed.

1. Article III Standing

The Article III standing arguments made by Defendants are of two varieties. First,

President Trump maintains that Swalwell and the Bass Plaintiffs “have not alleged a particularized

injury causally connected to Mr. Trump.” Thompson Trump Mot. at 15; Swalwell Trump Mot. at

16–17 (arguing that Swalwell “failed to allege any concrete injury caused by Defendants”).

Second, the Oath Keepers contend that the Bass Plaintiffs lack standing to sue in their personal

capacities to redress the alleged interference with their official duty to attend and participate in the

Certification of the Electoral College vote. Thompson Oath Keepers’ Mot. at 17. Neither

contention has merit.

Control Components, Inc., 572 U.S. 118, 128 n.4 (2014). The Supreme Court has made clear, however, that a question
of statutory standing does not implicate the court’s subject matter jurisdiction, that is, the court’s power to hear a case.
See id. Rather, a dispute as to statutory standing simply requires a court to determine whether a plaintiff “has a cause
of action under the statute.” Id. at 128. It is therefore an argument properly addressed pursuant to Federal Rule of
Civil Procedure 12(b)(6), not Rule 12(b)(1). The court thus takes up President Trump’s statutory standing argument
below in the section addressing whether Swalwell and the Bass Plaintiffs have stated a claim under § 1985(1).

17
a. The elements of standing

A plaintiff in federal court bears the burden of showing that she meets the “irreducible

constitutional minimum” of Article III standing: (1) injury in fact, (2) causation, and

(3) redressability. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). To establish standing

at the motion to dismiss stage, the plaintiff “must state a plausible claim that [she has] suffered an

injury in fact fairly traceable to the actions of the defendant that is likely to be redressed by a

favorable decision on the merits.” Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C.

Cir. 2015) (internal quotation marks omitted). The court must accept the well-pleaded allegations

of the complaint as true and draw all inferences in favor of the plaintiff. Arpaio v. Obama, 797

F.3d 11, 19 (D.C. Cir. 2015).

The primary question the court faces concerns “injury in fact, the first and foremost of

standing’s three elements.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (internal quotation

marks and alteration omitted). In one sense that inquiry here is easy; in another, it is a bit more

complicated. The easy establishment of a concrete injury is in Blassingame and as to one Plaintiff

in Thompson. “If a defendant has caused physical . . . injury to the plaintiff, the plaintiff has

suffered a concrete injury in fact under Article III.” TransUnion LLC v. Ramirez, 141 S. Ct. 2190,

2204 (2021). The Blassingame Plaintiffs claim to have suffered physical injury. Blassingame

Compl. ¶ 83 (“Officer Hemby was crushed against the doors on the east side trying to hold the

insurrectionists back.”); id. ¶ 88 (alleging Officer Hemby suffered “cuts and abrasions” over his

face and hands); id. ¶ 109 (“The insurrectionists struck Officer Blassingame in his face, head,

chest, arms, and what felt like every part of his body.”). 6 So, too, does Bass Plaintiff Jayapal. See

6
Although President Trump does not contest the Blassingame Plaintiffs’ standing except for a cursory mention in the
one-page motion to which he attaches his memorandum, Def. Trump’s Mot. to Dismiss, ECF No. 10; see generally
Blassingame Trump Mot., the court nevertheless addresses it. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)

18
Thompson Compl. ¶¶ 197, 203, 208 (alleging that she had a recent knee-replacement surgery and

the evacuation from the House Gallery caused her to suffer “throbbing pain in her greatly swollen

knee,” and that she “endured significant pain and experienced setbacks in her knee replacement

surgery recovery”). Because only one plaintiff must establish standing in Thompson, the court

need not inquire as to the other Bass Plaintiffs. See In re Navy Chaplaincy, 697 F.3d 1171, 1178

(D.C. Cir. 2012).

The more challenging question surrounding injury in fact relates to Swalwell in his

individual case. He does not allege any physical injury, only emotional harm. Swalwell Compl.

¶¶ 149, 223 (claiming “severe emotional distress”). For his common law claims, such harm is

sufficient to establish an injury in fact. See, e.g., TransUnion LLC, 141 S. Ct. at 2211 n.7

(acknowledging that emotional or psychological injury suffices for the tort of intentional infliction

of emotional distress). But not automatically so for his claims under § 1985(1) and § 1986 of the

Ku Klux Klan Act. See Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (stating that “a

plaintiff must demonstrate standing for each claim he seeks to press” (internal quotation marks

omitted)). As to those claims, a question remains whether emotional harm is sufficiently

“concrete” to establish Article III standing. Spokeo, 578 U.S. at 340. To determine “whether [such

an] intangible harm” is sufficiently concrete, courts must consider “both history and the judgment

of Congress.” Id. As to history, “it is instructive to consider whether an alleged intangible harm

has a close relationship to a harm that has traditionally been regarded as providing a basis for a

lawsuit in English or American courts.” Id. at 341. And, as to Congress’s judgment, courts must

ask “whether Congress has permissibly sought to ‘elevate to the status of legally cognizable

(stating that federal courts have an “independent obligation to determine whether subject-matter jurisdiction exists,
even in the absence of a challenge from any party”).

19
injuries concrete de facto injuries that were previously inadequate in law[.]’” Magruder v. Capital

One, Nat’l Ass’n, 540 F. Supp. 3d 1, 7 (D.D.C. 2021) (quoting Spokeo, 578 U.S. at 341).

The parties have devoted scant attention to these questions. The court has considered them,

however, and concludes that emotional harm is sufficiently concrete to establish Article III

standing for claims asserted under § 1985(1) and § 1986. Starting with history, the alleged

intangible harm here—emotional distress—has long been accepted as a basis for certain types of

suits in American courts. “Emotional harm has long-standing recognition as a compensable injury

as a parasitic harm to personal injury or property damage claims, usually referred to as a claim for

pain and suffering.” Betsy J. Grey, The Future of Emotional Harm, 83 FORDHAM L. REV. 2605,

2610 (2015). Additionally, “[c]ommon law . . . traditionally recognized emotional harm claims as

a component of trespassory torts like assault, false imprisonment, and defamation, allowing a

presumption of damages without a showing of related physical injury.” Id. This common law

tradition dovetails with the plain text of § 1985(1) and Congress’s reasons for enacting it. The

statute creates a cause of action for a person “injured in his person or property” due to a proscribed

conspiracy. 42 U.S.C. § 1985(3). The statute makes no distinction between physical and

emotional injury, and in that sense it aligns with the common law tradition of permitting recovery

for emotional distress for certain torts without a showing of physical injury. And, though the

statute “was enacted by a Congress acutely aware of the massive and frequently violent resistance

in the southern states to federal Reconstruction after the Civil War,” Stern v. U.S. Gypsum, Inc.,

547 F.2d 1329, 1334 (7th Cir. 1977), courts have broadly interpreted § 1985(1) consistent with its

“terms and legislative intent . . . , which [are] directed against efforts to impede governmental

operations by interfering with officials in the discharge of their duties.” Lawrence v. Acree, 665

F.2d 1319, 1329 (D.C. Cir. 1981) (Wald, J., concurring) (citing Stern, 547 F.2d 1329). Permitting

20
recovery for emotional harm arising from such interference is consistent with that intent. The

court thus concludes that “history and the judgment of Congress” support recognizing emotional

harm as a concrete injury to establish standing to bring claims under § 1985(1) and § 1986.

This conclusion is buttressed, at least implicitly, by two D.C. Circuit decisions. In both

Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004), and Hall v. Clinton, 285 F.3d 74 (D.C. Cir. 2002),

the court faced claims brought under § 1985(1). In Barr, the court dismissed the claim based on

the statute of limitations and the First Amendment, 370 F.3d at 1202–03, and in Hall, it dismissed

based on the statute of limitations alone, 285 F.3d at 82. In both cases, the plaintiff alleged

emotional distress as their injury, Barr, 370 F.3d at 1200; Hall, 285 F.3d at 77, yet in neither did

the court address whether emotional harm was a concrete injury for purposes of Article III.

Perhaps that is because the sufficiency of such injury was so obvious it did not need to be

addressed. Barr and Hall therefore support the court’s conclusion.

President Trump also contests whether Swalwell and the Bass Plaintiffs have plausibly

demonstrated the second element of standing—causation. He contends that their claimed injuries

were caused not by his challenged actions, but by “the independent and intervening acts of third-

party rioters.” Swalwell Trump Mot. at 16. He also contends that causation is lacking because

“Plaintiffs did not properly allege a conspiracy.” Thompson Trump Mot. at 15. But these

arguments misconstrue the standing inquiry. In “reviewing the standing question, the court must

be careful not to decide the questions on the merits for or against the plaintiff, and must therefore

assume that on the merits the plaintiffs would be successful in their claims.” City of Waukesha v.

EPA, 320 F.3d 228, 235 (D.C. Cir. 2003); see also Weissman v. Nat’l R.R. Passenger Corp., 21

F.4th 854, 857 (D.C. Cir. 2021) (citing City of Waukesha, 320 F.3d 228). Thus, in assessing

Plaintiffs’ standing here, the court must assume that Plaintiffs have successfully pleaded an

21
actionable conspiracy under § 1985(1): that is, President Trump did conspire “to prevent, by force,

intimidation, or threat,” (1) President Biden and Vice President Harris “from accepting or holding

any office, trust, or place of confidence under the United States” and (2) members of Congress

from lawfully discharging their constitutional and statutory duties with respect to certifying the

Electoral College vote. Viewed in this way, it is apparent that Plaintiffs’ injuries are “fairly

traceable” to President Trump’s alleged actions as a coconspirator, and “not the result of the

independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (cleaned up)

(emphasis added).

Finally, Plaintiffs’ injuries are redressable with money damages. The court therefore is

satisfied that Plaintiffs have sufficiently alleged the requisite elements of standing. 7

b. Legislator standing

The Oath Keepers take a different tack on standing. They assert that the Bass Plaintiffs’

injuries are institutional in nature—that is, they derive exclusively from their positions as members

of the House. The Oath Keepers contend that if their injuries are so understood, the Bass Plaintiffs,

as individual members, lack standing to vindicate an institutional injury. Oath Keepers Mot. at

17–26. The court might agree with this line of argument if the Bass Plaintiffs were claiming no

more than that the riot interfered with their abilities to carry out their legislative duties. But that

is not what they allege. They do not advance an institutional injury, such as the “dilut[ion] [of]

their Article I voting power.” Raines v. Byrd, 521 U.S. 811, 817 (1997) (internal quotation marks

omitted). Their injuries are instead personal: emotional distress in the main, as well as physical

7
Certain Plaintiffs seek injunctive relief in addition to damages. See Swalwell Compl. at 64; Thompson Compl. at 62.
The standing inquiry for injunctive relief is different, as it requires a plaintiff to establish a likelihood of future harm.
In re Navy Chaplaincy, 697 F.3d at 1178 (“It is sufficient that plaintiffs have demonstrated a ‘likelihood of injury that
rises above the level of unadorned speculation—that is, a realistic danger that [they] will suffer future harm.” (internal
quotation marks omitted)). Plaintiffs have not plausibly pleaded at this stage any likelihood of future injury.

22
injury to Jayapal. Thompson Compl. ¶ 265 (“During the time when the Capitol was under attack,

each of the Plaintiffs named above suffered emotional harm.”). Personal harm is the basis for their

standing and, as discussed, it is sufficient for purposes of Article III. 8

2. Presidential Immunity

The court turns next to the question of presidential immunity. President Trump contends

that under the Supreme Court’s decision in Nixon v. Fitzgerald, 457 U.S. 731 (1982), he is

absolutely immune from damages liability in all three cases because his alleged conduct fell within

the “outer perimeter” of his official presidential responsibilities. See Swalwell Trump Mot. at

8–11; Thompson Trump Mot. at 8–11; Blassingame Trump Mot. at 7–13. This is not an easy issue.

It is one that implicates fundamental norms of separation of powers and calls on the court to assess

the limits of a President’s functions. And, historical examples to serve as guideposts are few.

After careful consideration, the court concludes that, on the facts alleged, absolute immunity does

not shield President Trump from suit, except as to Swalwell’s § 1986 failure-to-act claim.

a. The scope of a President’s absolute immunity against damages
liability

The court’s discussion naturally begins with the Supreme Court’s decision in Nixon v.

Fitzgerald. In that case, a former federal employee sued President Richard Nixon and various

Executive Branch officials for damages arising from his termination from employment.

Fitzgerald, 457 U.S. at 733–39. The plaintiff claimed that President Nixon was directly involved

in his firing and that the action was undertaken in retaliation for his having publicly revealed during

8
It is understandable why the Oath Keepers interpreted the Bass Plaintiffs’ claimed injury to include an impairment
of their official duties. Their Complaint states that “each of the Plaintiffs named above was hindered and impeded in
the discharge of his or her official duties and suffered the deprivation of the right to be free from intimidation and
threats in the discharge of his or her official duties, as explicitly protected under the Ku Klux Klan Act.” Thompson
Compl. ¶ 265. That certainly sounds like an institutional injury. In any event, the Bass Plaintiffs have expressly
disavowed such a theory of standing. Bass Pls.’ Omnibus Mem. of Law in Opp’n to Defs.’ Mots. to Dismiss, ECF
No. 29, at 20 (“Plaintiffs, however, are not seeking damages for an impaired ability to certify the results of the
election.”).

23
congressional hearings cost overruns in the Department of the Air Force. See id. The plaintiff

asserted two statutory claims and one claim under the First Amendment against President Nixon,

who by that point no longer occupied the Office of the President. See id. After the D.C. Circuit

declined to dismiss the case on the ground of absolute presidential immunity, the Supreme Court

took up the question of the “scope of immunity available to a President of the United States.” Id.

at 741.

The Court held that President Nixon enjoyed absolute immunity from the plaintiff’s suit:

“[W]e hold that petitioner, as former President of the United States, is entitled to absolute

immunity from damages liability predicated on his official acts.” Id. at 749. The Court continued:

“We consider this immunity a functionally mandated incident of the President’s unique office,

rooted in the constitutional tradition of the separation of powers.” Id. Central to the Court’s

determination was the “unique position in the constitutional scheme” that the President occupies.

Id. The Court observed that, “as the chief constitutional officer of the Executive Branch,” the

President is “entrusted with supervisory and policy responsibilities of the utmost discretion and

sensitivity.” Id. at 750. Those responsibilities include taking care that the laws be faithfully

executed; conducting foreign affairs; and managing the Executive Branch. Id.; see also Trump v.

Vance, 140 S. Ct. 2412, 2425 (2020) (describing the President’s “duties, which range from

faithfully executing the laws to commanding the Armed Forces,” as “of unrivaled gravity and

breadth”). Though the Court had previously held that qualified immunity struck the proper

separation-of-powers balance for cabinet officers, the Court said that “[t]he President’s unique

status under the Constitution distinguishes him from other executive officials.” Fitzgerald, 457

U.S. at 750. For a President, “diversion of his energies by concern with private lawsuits would

raise unique risks to the effective functioning of government.” Id. at 751. Indeed, because the

24
President must concern himself with “matters likely to ‘arouse the most intense feelings,’” “there

exists the greatest public interest in providing an official the maximum ability to deal fearlessly

and impartially with the duties of his office.” Id. at 752 (internal quotation marks omitted). The

Court also weighed the “sheer prominence” of the President’s office, which makes him “an easily

identifiable target for suits for civil damages.” Id. at 752–53. “Cognizance of this personal

vulnerability frequently could distract a President from his public duties, to the detriment of not

only the President and his office but also the Nation that the Presidency was designed to serve.”

Id.

The Court then defined the scope of a President’s absolute immunity. It observed that “the

sphere of protected action must be related closely to the immunity’s justifying purposes.” Id. at

755. That principle militated in favor of expansive immunity: “In view of the special nature of

the President’s constitutional office and functions, we think it appropriate to recognize absolute

Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official

responsibility.” Id. at 756. The Court recognized that given the “broad variety of areas, many of

them highly sensitive,” of presidential discretionary responsibility, in “many cases it would be

difficult to determine which of the President’s innumerable ‘functions’ encompassed a particular

action.” Id. Such function could not, however, be defined by probing the President’s motive for

the contested action or by simply claiming a violation of law. The plaintiff in Fitzgerald, for

example, could not avoid the immunity bar by alleging that the President’s motive for terminating

him was retaliatory, and thus unlawful, and therefore fell outside the outer perimeter of his duties.

See id. at 756. Such a “construction would subject the President to trial on virtually every

allegation that an action was unlawful, or was taken for a forbidden purpose.” Id. President Nixon

thus enjoyed absolute immunity from suit because it was clearly within his constitutional and

25
statutory authority to prescribe reorganizations and reductions in force within a military branch—

the stated reason for Plaintiff’s termination. Id. at 757. Such action “lay well within the outer

perimeter of [a President’s] authority.” Id.

Fitzgerald thus established a scope of presidential immunity for civil money damages that

is unquestionably capacious, though not categorical. The Supreme Court contemplated that, at

least, there might be some actions by a President that would fall outside the outer perimeter of his

official responsibilities and expose him to a civil suit. What lay beyond the outer perimeter would

come into some focus fifteen years later in Clinton v. Jones.

There, President Bill Clinton, while in office, faced a suit by Paula Jones that, in the main,

alleged that he had engaged in sexually inappropriate conduct while he was the Governor of

Arkansas and had retaliated against her for rebuffing his advances. Clinton v. Jones, 520 U.S. 681,

686 (1997). 9 Such acts, the Court said, 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.

President Clinton nevertheless urged the Court to hold that “the Constitution affords the President

temporary immunity from civil damages litigation arising out of events that occurred before he

took office.” Id. at 692. The Court rejected the President’s call for “temporary immunity.” Id.

It reasoned that the principal rationale for affording certain public servants absolute immunity was

to enable “such officials to perform their designated functions effectively without fear that a

particular decision may give rise to personal liability,” and that such rationale did not apply to

“unofficial conduct.” Id. at 693–94. The Court emphasized that in defining the scope of immunity

9
Clinton v. Jones also involved a claim of defamation that arose while President Clinton was in office. The claim
was that “persons authorized to speak for the President publicly branded [the plaintiff] a liar by denying that the
incident had occurred.” 520 U.S. at 685. The question of immunity as to the defamation claim was not before the
Court, though it did observe in passing that the defamation claim “may involve conduct within the outer perimeter of
the President’s official responsibilities.” Id. at 686 & n.3.

26
it had taken a “functional approach,” and that “immunities are grounded in the nature of the

function performed, not the identity of the actor who performed it.” Id. at 694–95 (internal

quotation marks omitted). It concluded: “With respect to acts taken in his ‘public character’—that

is, official acts—the President may be disciplined principally by impeachment, not by private

lawsuits for damages. But he is otherwise subject to the laws for his purely private acts.” Id. at

696. 10

b. The parties’ positions on official-acts immunity

Guided by the foregoing principles, the court turns to the parties’ arguments. President

Trump bears the burden of establishing that he is immune from suit. See Banneker Ventures, LLC

v. Graham, 798 F.3d 1119, 1140 (D.C. Cir. 2015).

The complained-of actions of the President in these matters can be generally framed as

falling into three categories: his pre–January 6th tweets, the January 6 Rally Speech, and his failure

to promptly act once the Capitol was breached by rioters. President Trump argues that these acts

fall into two presidential “functions”: (1) the constitutional duty to “take Care that the Laws be

faithfully executed,” U.S. Const., art. II, § 3, and (2) speaking on matters of public concern.

Swalwell Trump Mot. at 8–11; Blassingame Trump Mot. 12; Reply in Supp. of Def. President

Trump’s Mot. to Dismiss, ECF No. 43 [hereinafter Thompson Trump Reply], at 3–6. Across his

various briefs, President Trump describes these functions in different ways. With respect to

faithful execution of the laws, President Trump says that he “had an ever-present duty to ensure

that the election laws were followed, including the certification process.” Thompson Trump Reply

10
The Court also made clear in Clinton, and later in Vance v. Trump, that the “dominant concern” for crafting broad
immunity in Fitzgerald “was not mere distraction but the distortion of the Executive’s ‘decisionmaking process’ with
respect to official acts that would stem from ‘worry as to the possibility of damages.’” Vance, 140 S. Ct. at 2426
(quoting Clinton, 520 U.S. at 694 n.19). President Trump alludes to a “distraction” rationale in his papers, see
Thompson Trump Mot. at 9, but he does not seriously advocate for it, recognizing instead that the “distortion” rationale
is the predominant reason for affording a President absolute immunity from civil suit for official acts.

27
at 3. Quoting from a law review student note, he says that enforcing election laws is “at the core

of the executive branch’s duty to faithfully execute the law.” Id. (internal quotation marks and

citation omitted). As to speaking on matters of public concern, the President argues that he “was

engaged in discretionary action pursuant to his Constitutional duty to ensure that the laws were

faithfully executed by petitioning Congress not to certify the electors from States with ongoing

election challenges.” Blassingame Trump Mot. at 10–11. Elsewhere he contends that the speech

and social media posts complained of by Plaintiffs all addressed matters of public concern and

thus are “within the outer perimeter of the Presidential office.” Thompson Trump Reply at 5. “[A]

political speech by the President is not at the ‘outer perimeter’ of his duties,” he says; rather, “it is

at dead center.” Swalwell Trump Mot. at 9.

The court finds that President Trump’s Take Care Clause argument is misleading and

wrong as a matter of law, and that his contention with respect to speech of public concern is too

simplistic.

i. The Take Care Clause

Article II, Section 3 vests in the President the authority to “take Care that the Laws be

faithfully executed.” Those are “sweeping words,” Myers v. United States, 272 U.S. 52, 122

(1926), but they do not confer limitless presidential authority or the authority to encroach on the

powers vested in the co-equal branches, see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579, 587–88 (1952). Presidential authority remains constrained by the Constitution and the laws

that Congress enacts. See id. at 587 (“In the framework of our Constitution, the President’s power

to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”); id. at 588

(“The President’s order does not direct that a congressional policy be executed in a manner

28
prescribed by Congress—it directs that a presidential policy be executed in a manner prescribed

by the President.”).

President Trump cites no constitutional provision or federal statute that grants or vests in

the President (or the Executive Branch) any power or duty with respect to the Certification of the

Electoral College vote, at least in the manner in which he conceives it. That is because there is

none. The Constitution spells out the respective responsibilities of various actors in the election

of the President. 11 The Constitution provides that States are to select Electors who will cast votes

for President and Vice President, and the Electors transmit a tally of those votes to the President

of the Senate. U.S. Const. art. II, § 1, cl. 3; id. amend. XII. The President of the Senate “in the

presence of the Senate and House of Representatives” shall “open all the certificates and the votes

shall then be counted.” Id. amend. XII. A sitting President is prescribed no role.

The Electoral Count Act, Pub. L. No. 49-90, 24 Stat. 373 (1887), fills in procedural details

not addressed in the Constitution. It, too, prescribes no role for a sitting President. A Joint Session

of the Senate and the House of Representatives must meet “at the hour of 1 o’clock in the

afternoon” on “the sixth day of January succeeding every meeting of the electors.” 3 U.S.C. § 15.

The President of the Senate, as the presiding officer, opens the certificates of the electoral votes

and hands them to tellers appointed by each House, who make a list of the votes. Id. When

announcing each certificate, the President of the Senate calls for objections, which if made must

be in writing and signed by one Senator and one member of the House of Representatives. Id.

Thereafter, the Senate and the House withdraw to their respective chambers to consider each

objection, and “each Senator and Representative may speak to such objection or question five

minutes, and not more than once[.]” Id. § 17. The presiding officer must cut the debate off after

The below summary is pulled, some of it verbatim, from Judge Friedrich’s decision in United States v. Sandlin,
11

No. 21-cr-88 (DLF), 2021 WL 5865006, at *4 (D.D.C. Dec. 10, 2021).

29
two hours. Id. He also has the “power to preserve order” during the session. Id. § 18. The Act

even details where the presiding officer, the Speaker, the Senators, the Representatives, the tellers,

and others are to sit in the chamber. Id. § 16. And it commands that the session “not be dissolved

until the count of electoral votes shall be completed and the result declared.” Id. As this summary

demonstrates, a sitting President has no expressly identified duty to faithfully execute the laws

surrounding the Certification of the Electoral College. So, perhaps it is not surprising that

President Trump does not identify any law relating to the Certification that he was purportedly

executing through his tweets and the January 6 Rally Speech.

Nor does he identify any authority that would support his assertion that merely exhorting

non–Executive Branch officials to act in a certain way is a responsibility within the scope of the

Take Care Clause. Scholars have emphasized that the Take Care Clause is written in the passive

voice (“take Care that the Laws be faithfully executed”). They have interpreted that construction

to mean that the Framers envisioned not that the President personally would implement the laws

but that their actual execution would be carried out by others subject to the President’s direction

and supervision. See, e.g., Andrew Kent et al., Faithful Execution and Article II, 132 HARV. L.

REV. 2111, 2126 (2019); Gillian E. Metzger, The Constitutional Duty to Supervise, 124 YALE L.J.

1836, 1875 (2015). The President’s Take Care Clause duty therefore does not extend to

government officials over whom he has no power or control. Here, the Vice President, acting as

President of the Senate, and members of Congress had constitutionally and statutorily prescribed

duties to carry out the Certification. Their actions are those of a co-equal branch, not subject to

30
Executive Branch control. President Trump’s advocacy of the scope of their duties and how they

should be performed therefore falls outside even the expansive Take Care Clause. 12

In summoning authority in aid of this argument, President Trump leaves out critical

context. President Trump relies on a law review note for the general proposition that “enforcing

election laws . . . [strikes] at the core of the executive branch’s duty to faithfully execute the law.”

Thompson Trump Reply at 3 (quoting Alton L. Lightsey, Note, Constitutional Law: The

Independent Counsel and Supreme Court’s Separation of Powers Jurisprudence, 40 U. FLA. L.

REV. 563, 573 (1988)). What President Trump omits from that quote, however, makes his citation

grossly misleading. The full quote reads: “However, enforcing election laws through litigation

[strikes] at the core of the executive branch’s duty to faithfully execute the law. It must therefore

belong solely to the executive.” Lightsey, supra, at 573 (emphasis added). Including “through

litigation” completely changes the meaning of the sentence. The President can enforce election

laws through litigation initiated by the Department of Justice or the Federal Election Commission,

agencies over which he has appointment authority. The case the Lightsey note cites, Buckley v.

Valeo, makes that clear: “A lawsuit is the ultimate remedy for a breach of the law, and it is to the

President, and not to the Congress, that the Constitution entrusts the responsibility to ‘take Care

that the Laws be faithfully executed.’” 424 U.S. 1, 138 (1976). This case, of course, does not

involve litigation to enforce federal election laws, and so the President’s reliance on the Lightsey

note is inapt.

12
To be clear, the court does not mean to say that there is no conceivable circumstance in which the President would
have a role in faithfully executing the laws pertaining to the Certification of the Electoral College. The court’s holding
is limited to President Trump’s contention that his mere exhortation to carry out Certification duties in a particular
way falls within the Take Care Clause.

31
ii. Speech on matters of public concern

The court turns next to President Trump’s assertion that his alleged actions all involve

speech on matters of public concern and therefore are well within the President’s duties. As he

puts it: “It is enough that the nature of the activity, a speech by the President, is the type of activity

normal and customary to the presidency. Indeed, it was not at the outer perimeter of the President’s

duties—it was dead center.” Thompson Trump Reply at 2.

The court agrees with President Trump in two respects. First, speech is unquestionably a

critical function of the presidency. “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); see also Columbia Broad. Sys., Inc. v. FCC, 454 F.2d 1018, 1020 (D.C. Cir.

1971) (“The President’s extensive use of the media cannot, of course, be faulted, for there can be

no doubt that in the distillation of an informed public opinion such appearances play a very basic

role.”). Second, his pre–January 6th tweets and the January 6 Rally Speech addressed matters of

public concern: the outcome of the 2020 Presidential Election and election integrity. Whatever

one thinks of the President’s views on those subjects, they plainly were matters of public concern.

See Snyder v. Phelps, 562 U.S. 443, 453 (2011) (“Speech deals with matters of public concern

when it can be fairly considered as relating to any matter of political, social, or other concern to

the community or when it is a subject of legitimate news interest; that is, a subject of general

interest and of value and concern to the public.” (internal quotation marks and citations omitted));

Rankin v. McPherson, 483 U.S. 378, 387 (1987) (stating the arguably “inappropriate or

controversial character of a statement is irrelevant to the question whether it deals with a matter of

public concern”).

32
But to say that speaking on matters of public concern is a function of the presidency does

not answer the question at hand: Were President Trump’s words in this case uttered in performance

of official acts, or were his words expressed in some other, unofficial capacity? The President’s

proposed test—that whenever and wherever a President speaks on a matter of public concern he is

immune from civil suit—goes too far. It mirrors what the Supreme Court has said cannot be the

basis for absolute immunity: “[T]o construct an immunity from suit for unofficial acts grounded

purely in the identity of [the President’s] office is unsupported by precedent.” Clinton, 520 U.S.

at 695. And the Supreme Court has recognized different capacities in which the person occupying

the Office of the President can act: “Presidents and other officials face a variety of demands on

their time, . . . some private, some political, and some as a result of official duty.” Id. at 705 n.40.13

Thus, to say that the President spoke on a matter of public concern does not dispositively answer

the question of whether he enjoys absolute immunity for such speech.

Consider some examples. At a rally promoting his reelection, an incumbent President touts

his policy accomplishments and makes promises about a second term, but during his speech he

instructs members of the crowd to “punch” a protester “in the face right now.” Or, take a President

who speaks at a party fundraising event before a group of high-dollar donors, where he not only

discusses pending legislation but also falsely and with malice accuses a political opponent who is

13
This observation was made as part of the Supreme Court’s rejection of the “distraction” theory as justifying absolute
immunity:

There is, no doubt, some truth to Learned Hand’s comment that a lawsuit should
be “dread[ed] . . . beyond almost anything else short of sickness and death.” We
recognize that a President, like any other official or private citizen, may become
distracted or preoccupied by pending litigation. Presidents and other officials face
a variety of demands on their time, however, some private, some political, and
some as a result of official duty. While such distractions may be vexing to those
subjected to them, they do not ordinarily implicate constitutional separation-of-
powers concerns.

Clinton, 520 U.S. at 705 n.40 (citation omitted).

33
blocking the legislation of running a child-trafficking operation. Or, consider a President who

appears at a campaign event for a candidate of his party who is running for Congress, and during

his remarks touts the candidate because his election will help advance his agenda, but also calls on

the crowd to destroy property as a sign of support. In each of these scenarios, the conduct of the

President comes in the context of words uttered on matters of public concern, but it is doubtful that

anyone would consider the President immune from tort liability for harm resulting from his speech.

To be sure, these scenarios may seem far-fetched, but they illustrate an important point: blanket

immunity cannot shield a President from suit merely because his words touch on matters of public

concern. The context in which those words are spoken and what is said matter.

For their part, Plaintiffs urge the court to reject President Trump’s claim of absolute

immunity for two reasons: first, because they “allege that he was acting solely in his personal

capacity as a candidate,” and second, because he “engaged in serious misconduct that obstructed

a co-equal branch of government, removing his actions from the outer bounds of permissible

presidential conduct.” Bass Pls.’ Omnibus Mem. of Law in Opp’n to Defs.’ Mots. to Dismiss,

ECF No. 29 [hereinafter Thompson Pls.’ Opp’n], at 65 (internal quotation marks omitted); see also

Pl. Swalwell’s Combined Opp’n to Defs.’ Mots. to Dismiss, ECF No. 23 [hereinafter Swalwell

Opp’n], at 11 (arguing that “Trump conflates his role as a candidate with his role as President”);

Blassingame Pls.’ Opp’n to Def.’s Mot. to Dismiss, ECF No. 21 [hereinafter Blassingame Pls.’

Opp’n], at 6 (“Article II does not provide Trump with immunity for inciting an insurrection.”).

These formulations present their own set of problems.

For one, the line between President and candidate will not always be clear. A first-term

President is, in a sense, always a candidate for office. It is not the least bit unusual for first-term

Presidents to comment on public policy or foreign affairs at campaign events, or, in this day, to

34
announce policy changes by tweet during an election year. Plaintiffs offer no principled

constitutional basis on which to discern how to categorize such acts. 14

As for their contention that immunity cannot extend to a President that incites a mob to

attack a co-equal branch of government, while having surface appeal, it too runs into an analytical

problem. If what Plaintiffs mean to say is that an alleged violation of law by a President cannot

fall within the outer perimeter of his official duties, the Supreme Court rejected that very argument

in Fitzgerald. Such a “construction,” the Court said, “would subject the President to trial on

virtually every allegation that an action was unlawful, or was taken for a forbidden purpose.

Adoption of this construction thus would deprive absolute immunity of its intended effect.”

Fitzgerald, 457 U.S. at 756–57. Plaintiffs’ position also runs up against the Court’s admonition

that a test for immunity that depends upon “a President’s motives” “could be highly intrusive.” Id.

at 756. Predicating an immunity determination on whether President Trump intended to cause a

riot arguably would require just such an inquiry. 15

14
At oral argument and in a post-hearing filing, Plaintiffs proposed that the court could rely on an Office of Legal
Counsel Opinion from 1982, Payment of Expenses Associated with Travel by the President and Vice President,
6 Op. O.L.C. 214 (1982), to distinguish between a President’s official duties and campaign activities. See Hr’g Tr.
33; Pls.’ Notice of Suppl. Authority, ECF No. 59 (on Thompson docket). That Opinion adopts a “reasonable
connection” to “official purposes” test to differentiate the two capacities. 6 Op. O.L.C. at 216. The court is skeptical
that a test rooted in statutory and administrative rules on spending of appropriations can define the scope of a
constitutional immunity.
15
That said, the court would be remiss in not pointing out that there is at least some historical support for Plaintiffs’
position. In Fitzgerald, the Court found persuasive Justice Story’s analysis on presidential immunity. 457 U.S. at
749 (quoting 3 J. STORY, COMMENTARIES OF THE CONSTITUTION OF THE UNITED STATES § 1563, at 418–19 (1st ed.
1833)). Justice Story also commented on the open question of “whether, under the constitution, any acts are
impeachable, except such, as are committed under colour of office.” 2 Commentaries § 799. In other words, does the
constitutional remedy of impeachment extend to official acts only, or can it be based on unofficial conduct? In
addressing this issue, Justice Story did not formulate a firm opinion, but he did make the following observation:

In the argument upon Blount’s impeachment, it was pressed with great
earnestness, that there is not a syllable in the constitution, which confines
impeachments to official acts, and it is against the plainest dictates of common
sense, that such restraint should be imposed upon it. Suppose a judge should
countenance, or aid insurgents in a meditated conspiracy or insurrection against
the government. This is not a judicial act; and yet it ought certainly to be
impeachable.

35
iii. The President’s challenged acts

Rather than apply the parties’ proffered categorial rules to the immunity question, the court

thinks the better course is to evaluate the defense on the specific facts alleged and, based on those

facts, determine whether President Trump’s words were spoken in furtherance of a presidential

function. That is the approach that the D.C. Circuit took in Banneker Ventures, LLC v. Graham,

a case in which then–Board Member of the Washington Metropolitan Area Transit Authority

(“WMATA”) Jim Graham asserted absolute immunity from a suit accusing him of improperly

interfering with a developer’s ultimately unsuccessful project negotiations with WMATA.

798 F.3d 1119, 1139 (D.C. Cir. 2015). The court viewed Graham’s immunity defense, in part,

through the lens of federal common law and asked whether Graham’s alleged conduct fell within

the scope of his official duties. Id. at 1140. It applied the “within the outer perimeter of [an

official’s] line of duty” test as demarcating the line between Graham’s official and unofficial acts.

Id. (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)). The trial court had found that all of

Graham’s alleged tortious acts were immune, but the D.C. Circuit criticized the trial court for

“conceiv[ing] of the inquiry at too high a level” and for not “analyzing each challenged act.” Id.

at 1141; id. (“At a high enough level of generality, almost any act that has any relationship to an

overarching duty . . . will be immunized.”). “The appropriate focus,” the court wrote, “is on the

relationship between ‘the act complained of’ and the corresponding ‘matters committed by law to

[the official’s] control or supervision.’” Id. (quoting Barr, 360 U.S. at 573). The court noted that

Id. § 802 (emphasis added). Justice Story’s mention of “Blount’s impeachment” refers to the impeachment of Senator
William Blount of Tennessee in 1797, who stood accused of conspiring with British officials and others in a plot to
establish British control over the Spanish-controlled territories of Louisiana and the Floridas. The House impeached
Blount, but the Senate ultimately dismissed the charges because Blount had already been expelled and the Senate
concluded it no longer had jurisdiction over him. See Impeachment Trial of Senator William Blount, 1799, U.S.
SENATE, https://www.senate.gov/about/powers-procedures/impeachment/impeachment-blount htm (last visited Feb.
8, 2022). This tidbit of history does lend some credence to the notion that a high government official who “aid[s]
insurgents in a meditated conspiracy or insurrection against the government” is not acting in an official capacity.

36
“[o]ne way that an official acts manifestly beyond his authority is through the use of ‘manifestly

excessive means,’ even if he does so in the conduct of duties otherwise within his official purview.”

Id. at 1141 (citation omitted). The court emphasized that the burden of establishing immunity rests

on the official claiming it. Id. at 1140.

Concededly, the scope-of-duty evaluation undertaken in Graham was quite rigorous, and

such rigor arguably should not apply here with equal force. This case involves the President of

the United States, not a board member of a public agency. (Barr, on which Graham relied,

involved the acting director of a federal agency.) There are separation-of-powers considerations

at play here that were not present in Graham. Nevertheless, the court believes that Graham’s basic

approach applies; that is, in evaluating a presidential claim of absolute immunity the court must

consider the relationship of the challenged conduct to the claimed corresponding function of the

President.

In undertaking this analysis, the court starts from the following premise, as to which there

should be no dispute: The Office of the President has no preference for who occupies it. Article

II of the Constitution, which defines the powers and duties of the President, is agnostic as to

whether a sitting President is elected to a new term. So, too, is federal statutory law. A function

of the presidency therefore is not to secure or perpetuate incumbency. Plaintiffs’ allegations

against President Trump accuse him of doing just that: devoting his last weeks in office to

continuing his term as President of the United States through the Electoral College vote and

certification process, even though he did not prevail in the general election.

Among his first alleged acts following the general election were tweets criticizing state

officials for not doing enough to enable him to prevail in their states. Swalwell Compl. ¶ 36

(criticizing the governors of Arizona and Georgia and saying, “If they were with us, we would

37
have already won both”). The President also directly contacted local election officials and state

legislators in Michigan, Pennsylvania, and Georgia to allegedly pressure them to overturn their

election results. Id. ¶¶ 37–54. These efforts included urging local Michigan officials to reverse

their certification of election results, id. ¶ 38, and saying to Georgia’s Secretary of State, “I just

want to find 11,780 votes, which is one more than we have,” id. ¶ 53. He would later call that

Georgia state official an “enemy of the people.” Thompson Compl. ¶ 47. President Trump also

filed multiple lawsuits in jurisdictions in which he did not prevail. Id. ¶ 36. Those suits plainly

were directed at securing incumbency. They, like his tweets and direct outreach to state election

officials, were not official acts.

The same is true with respect to his tweets regarding rallies that occurred in Washington,

D.C., in November and December 2020. Those tweets did not advocate any policy changes or

legislation. Rather, they expressly stated or implied that the rallies would help him remain

President. Blassingame Compl. ¶¶ 23, 25, 26 (tweeted photo of rally captioned “We will WIN!”);

id. ¶ 27 (tweet stating “WE HAVE JUST BEGUN TO FIGHT!!!”).

That, too, was the purpose of the January 6 Rally. President Trump invited people to

Washington, D.C., for the event. Id. ¶ 32. In a tweet referencing the January 6 Rally, he

encouraged his followers to “Never give up.” Swalwell Compl. ¶ 56. On the eve of the January 6

Rally, the President’s tweets turned to Vice President Pence. Blassingame Compl. ¶ 38. The

President expressed the view that the Vice President had the power, as President of the Senate, to

reject states’ Electoral College certifications and return them to be recertified. Id. The clear

purpose of such recertification would be to allow Electoral College votes to be recast in his favor:

“All Mike Pence has to do is send them back to the States, AND WE WIN.” Id. These tweets

were not official acts but issued to help him “win.”

38
Nor did planning for the January 6 Rally involve official duties. Those acts took place

largely through President Trump’s campaign organization. In mid-December, the campaign used

campaign funds to pay Event Strategies, Inc., the company that would secure the permit for the

January 6 Rally. Blassingame Compl. ¶ 31. The campaign’s Director of Finance was listed as the

“VIP Lead” for the rally, Swalwell Compl. ¶ 97, and a “top Trump campaign fundraiser oversaw

the logistics, budgeting, funding and messaging” for the rally, Thompson Compl. ¶ 68. The Trump

campaign and various related entities paid more than $3.5 million to assist in organizing.

Blassingame Compl. ¶ 39. President Trump also allegedly participated directly in the planning.

He was involved in decisionmaking about the speaking lineup and music selection. Thompson

Compl. ¶ 69. And, critically, to the surprise of rally organizers, President “Trump and his

campaign proposed that the rally include a march to the Capitol,” even though the permit they had

obtained did not allow for one. Id. ¶¶ 69, 90 (alleging that the permit expressly provided: “This

permit does not authorize a march from the Ellipse”). Organizing the January 6 Rally involved no

presidential function.

And then there is the January 6 Rally Speech itself. The court has considered it in its

entirety, analyzing it beyond the words quoted in the Complaints. The court will go into greater

detail about the Speech later in this opinion. For present purposes it suffices to say that while the

Speech did touch on matters of public concern (namely President Trump’s pledge to work on

election laws in a second term), the main thrust of the Speech was not focused on policy or

legislation. It was to complain about perceived cases of election fraud that led President-elect

Biden to win more votes in closely contested states, to urge members of Congress to object to

certain state certifications, and to exhort the Vice President to return those certifications to those

states to be recertified. Much like the tweets leading up to the January 6 Rally, the words spoken

39
by the President—without delving into the motivation behind them—reflect an electoral purpose,

not speech in furtherance of any official duty.

To deny a President immunity from civil damages is no small step. The court well

understands the gravity of its decision. But the alleged facts of this case are without precedent,

and the court believes that its decision is consistent with the purposes behind such immunity.

Subjecting a president to potential liability for the acts described in the Complaints will not

“diver[t] . . . the President’s attention during the decisionmaking process” with “needless worry as

to the possibility of damages actions stemming from any particular official decision.” Clinton,

520 U.S. at 694 n.19. After all, the President’s actions here do not relate to his duties of faithfully

executing the laws, conducting foreign affairs, commanding the armed forces, or managing the

Executive Branch. They entirely concern his efforts to remain in office for a second term. These

are unofficial acts, so the separation-of-powers concerns that justify the President’s broad

immunity are not present here. “If the Judiciary may severely burden the Executive Branch by

reviewing the legality of the President’s official conduct, and if it may direct appropriate process

to the President himself, it must follow that the federal courts have power to determine the legality

of his unofficial conduct.” Id. at 705. The court therefore may “determine the legality” of

President Trump’s acts that are alleged to have given rise to Plaintiffs’ injuries on January 6th.

iv. Section 1986 claim

The foregoing comes with one important caveat: President Trump is immune as to

Swalwell’s failure-to-act claim under § 1986. That provision states:

Every person who, having knowledge that any of the wrongs
conspired to be done, and mentioned [in section 1985 of this title],
are about to be committed, and having power to prevent or aid in
preventing the commission of the same, neglects or refuses so to do,
if such wrongful act be committed, shall be liable to the party
injured, or his legal representatives, for all damages caused by such

40
wrongful act, which such person by reasonable diligence could have
prevented.

42 U.S.C. § 1986. The statutory provision is unique. It requires persons with knowledge of a

conspiracy proscribed in § 1985 and with the means to prevent the conspiracy to take affirmative

actions to do so. A person who refuses or neglects to exercise such power is liable for damages to

those persons whose injuries could have been prevented.

Swalwell alone asserts a claim under § 1986 against President Trump. He alleges that

President Trump knew about the alleged § 1985 conspiracy, had the power to prevent it, and failed

to exercise “reasonable diligence” to avoid harm. Specifically, he asserts that “when it was clear

that rioters had stormed the Capitol, and Congress was unable to certify the results of the Electoral

College vote, [President Trump] had the power to stop the rioters but refused and, instead,

encouraged them.” Swalwell Compl. ¶ 190. That allegation, it would seem, makes out a § 1986

claim against the President.

But the President cannot be held liable for his failure to exercise his presidential powers,

at least under § 1986. Just as he is immune for acts that fall within the outer perimeter of his

official responsibilities, so too must he be immune for alleged failures to exercise that official

responsibility. Were it otherwise, Presidents routinely would be subject to suit for not doing more

or for not acting at all. Absolute immunity would be gutted if a plaintiff could avoid it simply by

alleging a failure to exercise presidential power. The court therefore dismisses Swalwell’s § 1986

claim. 16

16
If Swalwell contends that President Trump is liable under § 1986 because he himself is an alleged coconspirator
and had the power to stop the conspiracy, the court is dubious that § 1986 can sustain such a construction. If accepted,
it would mean that any coconspirator of a § 1985 conspiracy with some degree of authority is likewise liable under
§ 1986. The court is skeptical that Congress intended such an interpretation. In any event, Swalwell does not
specifically articulate a reading of § 1986 that would rest on the President’s failure to act before the rally-goers stormed
the Capitol. See Swalwell Compl. ¶ 90.

41
3. The Political Question Doctrine

President Trump raises a related jurisdictional argument: these cases present a

nonjusticiable political question. See Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195

(2012) (stating that, when a case involves a political question, “a court lacks the authority to decide

the dispute”). The political question doctrine removes from the purview of the courts cases that

“revolve around policy choices and value determinations constitutionally committed for resolution

to the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am.

Cetacean Soc’y, 478 U.S. 221, 230 (1986). The doctrine bars a court’s “jurisdiction only when

the Constitution textually commits ‘the issue’ to be adjudicated in the case ‘to a coordinate political

department,’ or when there is ‘a lack of judicially discoverable and manageable standards for

resolving it.’” Hourani v. Mirtchev, 796 F.3d 1, 8 (D.C. Cir. 2015) (quoting Nixon v. United States,

506 U.S. 224, 228 (1993)). President Trump’s effort to morph this case into one presenting a

political question fails.

For starters, the court already has held that the President’s actions leading up to the riot at

the Capitol building were not undertaken in his official capacity. To that extent, these cases

implicate no policy choice or value determination committed to the Executive Branch. That

holding alone takes this case outside of the political question doctrine.

But even if the court uses the doctrine’s analytical framework, President Trump fares no

better. He first argues that because this suit is “based upon the words or action of the President,”

an adjudication “would improperly regulate the executive department, in violation of Article II,

§ 1 which requires that the executive power be exercised solely by the President.” Thompson

Trump Mot. at 11–12. If by that argument the President means that any suit touching on

presidential speech gives rise to a political question, that cannot be, because the Constitution says

42
nothing about a President’s speech. Moreover, the Supreme Court has never held that just because

a case involves review of a President’s claimed exercise of his general Article II executive powers

it is nonjusticiable. That is not the law. See, e.g., Youngstown Sheet & Tube, 343 U.S. at 587

(rejecting claimed presidential authority to seize steel mills based on Article II’s grant of Executive

power in the President).

The President next argues that to adjudicate these cases would force the court “to make a

value determination about what is or is not proper for the President to say during a political speech

when advocating for governmental action.” Thompson Trump Mot. at 12. It is true that, in a sense,

an adjudication here might involve a “judgment” of the President’s speech, “[b]ut that has never

been enough, by itself, to trigger the political question doctrine’s jurisdictional bar.” Cf. Hourani,

796 F.3d at 8 (stating that the fact that a judgment might implicate the acts of a foreign nation, by

itself, does not create a nonjusticiable political question). A suit against the President often has

political overtones, but “courts cannot avoid their responsibility merely ‘because the issues have

political implications.’” Zivotofsky, 566 U.S. at 196 (quoting INS v. Chadha, 462 U.S. 919, 943

(1983)).

President Trump also tries a different approach. He suggests that because he was

impeached by the House but acquitted by the Senate for his actions relating to January 6th, a

judicial inquiry of his conduct raises a political question because it might “displace the Senate as

the final arbiter on the subject of impeachment, showing disrespect for a co-equal branch.”

Blassingame Trump Mot. at 14. But, of course, this court is in no sense conducting a review of

the impeachment proceedings; nor could it do so. See Nixon, 506 U.S. at 230–31 (holding that a

court lacks the constitutional authority to review the Senate’s impeachment trial procedures). Its

concern is with the President’s potential civil liability for the events of January 6th. The mere fact

43
that these cases and the impeachment proceedings pertain to the same subject matter does not

implicate the political question doctrine.

4. The Impeachment Judgment Clause

President Trump also seeks dismissal based upon his impeachment proceedings in a

different way: he contends that the Impeachment Judgment Clause forecloses civil liability of

someone who is not convicted following an impeachment trial. The court understands this

argument to challenge its subject matter jurisdiction. The Impeachment Judgment Clause

provides:

Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment,
Trial, Judgment and Punishment, according to Law.

U.S. Const. art. I, § 3, cl. 7. According to the President, because the Impeachment Judgment

Clause speaks only to further action against a “Party convicted,” and is silent as to a person not

convicted, it follows that the Clause “forbids further litigation of the same claims by those

acquitted by the Senate.” Thompson Trump Mot. at 13.

In support of this reading, the President invokes the expressio unius est exclusio alterius

canon of statutory interpretation, which means that “expressing one item of [an] associated group

or series excludes another left unmentioned.” Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80

(2002) (alteration in original) (citation omitted); Thompson Trump Mot. at 13. But that canon does

not apply. For one, the President cites no case in which the Supreme Court has used that canon of

statutory construction to directly interpret a clause of the Constitution, and the court has struggled

to find one. Cf. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 793 n.9 (1995) (relying on one

Framer’s commentary to observe that “the Framers were well aware of the expressio unius

44
argument that would result from their wording of the Qualifications Clauses”); Salamanca Twp.

v. Wilson, 109 U.S. 627, 628 (1883) (applying canon to interpretation of state constitution); Pine

Grove Twp. v. Talcott, 86 U.S. 666, 675 (1873) (same). Even if the canon were to apply, “it has

force only when the items expressed are members of an ‘associated group or series,’ justifying the

inference that items not mentioned were excluded by deliberate choice, not inadvertence.”

Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (citation omitted); see also Echazabal,

536 U.S. at 81 (“The canon depends on identifying a series of two or more terms or things that

should be understood to go hand in hand, which [is] abridged in circumstances supporting a

sensible inference that the term left out must have been meant to be excluded.”). The Impeachment

Judgment Clause does not contain an “associated group or series” or “two or more terms or things”;

it only addresses the non-preclusive effect of a conviction following impeachment. The Supreme

Court has said that “[w]e do not read the enumeration of one case to exclude another unless it is

fair to suppose that Congress considered the unnamed possibility and meant to say no to it.”

Barnhart, 537 U.S. at 168. President Trump offers no evidence to support a conclusion that the

Framers intended for the absence of any reference to an acquitted officer following impeachment

to mean that such official could not be subject to judicial process.

In fact, the historical evidence is to the contrary. An Office of Legal Counsel (OLC)

Opinion from 2000, which the President himself cites, provides a helpful summary. See Whether

a Former President May Be Indicted and Tried for the Same Offense for Which He Was Impeached

by the House and Acquitted by the Senate, 24 Op. O.L.C. 110, 113 (2000). That opinion

concludes, “We are unaware of any evidence suggesting that the framers and ratifiers of the

Constitution chose the phrase ‘the party convicted’ with a negative implication in mind.” Id. at

120.

45
Indeed, if the Impeachment Judgment Clause were intended to
imply that acquittal by the Senate would block criminal prosecution
for the same offenses, one would expect that at least one participant
in the process of framing and ratifying the Constitution would have
pointed out this negative implication. We are aware of none.

Id. at 121–24. The court finds the OLC’s exhaustive historical recitation of the origins of the

Impeachment Disqualification Clause to be persuasive. The court therefore draws no negative

implication from the words of the Impeachment Judgment Clause that would bar civil liability of

a President acquitted following impeachment. 17

5. Res Judicata and Collateral Estoppel

President Trump attempts to make one last use of his impeachment proceedings: he

contends that his acquittal bars litigation of the present claims on the grounds of res judicata and

collateral estoppel. Thompson Trump Mot. at 13–14. He devotes scant attention to this argument

in Thompson and Swalwell—largely one conclusory paragraph in each motion, id. at 14; Swalwell

Trump Mot. at 14–15—but devotes more attention to it in Blassingame, Blassingame Trump Mot.

at 14–18. The court addresses it as if fully raised in all three cases.

The doctrine of res judicata, also known as claim preclusion, provides that “a final

judgment on the merits of an action precludes the parties or their privies from relitigating issues

that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980).

Under the doctrine of res judicata . . . a subsequent lawsuit will be
barred if there has been prior litigation (1) involving the same claims
or cause of action, (2) between the same parties or their privies, and

17
In his Blassingame motion, President Trump makes a further argument. He contends that the Impeachment
Judgment Clause’s use of the word “Indictment” to start the series “Indictment, Trial, Judgment and Punishment,
according to Law” underscores that “an individual convicted is only potentially liable for follow on criminal charges
brought by the government rather than a civil suit on the same issues.” Blassingame Trump Mot. at 21 (emphasis
added). The court already has rejected the contention that the Impeachment Judgment Clause implicitly forecloses
further action against an acquitted individual. President Trump does not, however, make the alternative argument
that, even if an acquitted official can be subject to some judicial process, the word “Indictment” implies that such
process can only be criminal and not civil in nature. See id. at 21–22. The court therefore does not address that
contention.

46
(3) there has been a final, valid judgment on the merits, (4) by a
court of competent jurisdiction.

Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006). The related doctrine of collateral

estoppel, or issue preclusion, provides that “once a court has decided an issue of fact or law

necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different

cause of action involving a party to the first case.” Allen, 449 U.S. at 94.

[C]ollateral estoppel bars successive litigation of an issue of fact or
law when “(1) the issue is actually litigated; (2) determined by a
valid, final judgment on the merits; (3) after a full and fair
opportunity for litigation by the parties or their privies; and (4) under
circumstances where the determination was essential to the
judgment, and not merely dictum.”.

Capitol Servs. Mgmt., Inc. v. Vesta Corp., 933 F.3d 784, 794 (D.C. Cir. 2019) (citation omitted).

Applying these preclusion doctrines strikes the court as more complicated that it might

seem at first blush. Plaintiffs, for instance, argue that the President’s Senate impeachment trial is

not a prior “litigation” because the term “litigation” is defined to mean the resolution of disputes

in a court of law. See Thompson Pls.’ Opp’n at 73. But the Supreme Court has recognized that

preclusion principles can bind an Article III court based on a final judgment from an administrative

agency acting in a judicial capacity. See B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S.

138, 148 (2015) (“Both this Court’s cases and the Restatement make clear that issue preclusion is

not limited to those situations in which the same issue is before two courts.”). And, there is a more

than colorable argument to be made that the Senate acts in a judicial capacity when “try[ing]” an

official on an Article of Impeachment. See, e.g., In re Comm. on the Judiciary, U.S. House of

Representatives, 951 F.3d 589, 596 (D.C. Cir. 2020) (“The constitutional text confirms that a

Senate impeachment trial is a judicial proceeding.”), vacated and remanded sub nom. Dep’t of

Just. v. House Comm. on the Judiciary, 142 S. Ct. 46 (2021). Plaintiffs also argue that the “claims”

47
here are different because they rest on federal and District of Columbia law, as opposed to the sole

charge of “Incitement of Insurrection” lodged against the President by the House. See Thompson

Pls.’ Opp’n at 73; Blassingame Pls.’ Opp’n at 19. But Plaintiffs read the “same claim” element

too narrowly, because “[w]hether two cases implicate the same cause of action turns on whether

they share the same ‘nucleus of facts.’” Apotex, Inc. v. FDA, 393 F.3d 210, 217 (D.C. Cir. 2004)

(citation omitted). The impeachment trial and this case clearly do.

Still, the court thinks that neither doctrine applies for several reasons. First, the text of the

Impeachment Judgment Clause does not support their application. As discussed, that Clause

expressly contemplates that a person impeached and convicted could face a criminal trial.

See Nixon, 506 U.S. at 234 (“[T]he Framers recognized that most likely there would be two sets

of proceedings for individuals who commit impeachable offenses—the impeachment trial and a

separate criminal trial.”). The court also has concluded that neither the text nor the history of the

Clause forecloses a subsequent proceeding, criminal or civil, for a person acquitted following

impeachment. See supra pp. 44–46. If that is correct, it would be an odd result to then say that

the acquitted individual could use the non-conviction by the Senate to have preclusive effect,

which would thwart any second proceeding. To accept the President’s application of res judicata

and collateral estoppel here would add an implicit preclusion bar to the Impeachment Judgment

Clause where there is none.

Second, although it is not a settled question, the court doubts that any Plaintiff is in privity

with the House of Representatives if one deems the House as the opposing party in an impeachment

trial. The Blassingame Plaintiffs certainly are not in privity with members of the House. Swalwell

and the Bass Plaintiffs are members of the House, but in voting for the Article of Impeachment

and, in Swalwell’s case, prosecuting it, those Plaintiffs were acting in their legislative capacities

48
as representatives of their constituents. The Supreme Court has long recognized that the law treats

members of Congress differently depending on the capacity in which they are acting. See, e.g.,

Raines, 521 U.S. at 820–21 (distinguishing between personal and institutional injuries for purposes

of a legislator’s standing); United States v. Brewster, 408 U.S. 501, 507 (1972) (“The immunities

of the Speech or Debate Clause were not written into the Constitution simply for the personal or

private benefit of Members of Congress . . . .”). Here, they seek relief not as legislators but for

injuries they suffered personally.

Third, applying preclusion principles here would require the court to assess the adequacy

of the Senate proceedings, an inquiry that is nonjusticiable. See Nixon, 506 U.S. at 229–30, 237–38

(declining to decide whether the authority conferred on the Senate “to try all Impeachments”

precluded certain Senate impeachment procedures). For instance, assessing whether Plaintiffs here

had “a full and fair opportunity for litigation” for purposes of collateral estoppel would require the

court to evaluate the adequacy of the Senate procedures used during the President’s impeachment

trial. See Restatement (Second) of Judgments § 28(3) (Am. L. Inst. 1982) (stating that issue

preclusion may not apply where “differences in the quality or extensiveness of the procedures

followed in the two courts or by factors relating to the allocation of jurisdiction between them”).

This the court cannot do.

Finally, it is impossible to discern whether there was a “final, valid judgment on the merits”

for purposes of res judicata, Smalls, 471 F.3d at 192, and what issues of fact or law the Senate

deemed “necessary to its judgment” for purposes of collateral estoppel, Allen, 449 U.S. at 94. The

Senate made no written findings, and individual Senators were not required to explain the reason

for their vote for acquittal. In fact, if the court looks beyond the pleadings, several Senators,

including Senate Minority Leader Mitch McConnell, publicly stated that they voted to acquit

49
because the Senate lacked jurisdiction to punish a former President. See Swalwell Opp’n at 36.

An acquittal on jurisdictional grounds arguably does not constitute a “judgment on the merits” for

purposes of res judicata. Cf. Kasap v. Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243,

1248 (D.C. Cir. 1999) (stating that “dismissals for lack of jurisdiction are not decisions on the

merits and therefore have no res judicata effect on subsequent attempts to bring suit in a court of

competent jurisdiction”). Nor would such an acquittal have any bearing on this court’s jurisdiction

for purposes of collateral estoppel.

The court therefore holds that neither res judicata nor collateral estoppel bars these suits or

precludes litigation of any issue or fact.

B. Failure to State a § 1985(1) Claim

Having concluded that all claims against Defendants, except one (Swalwell’s § 1986

claim), are justiciable, the court now turns to the question of whether Plaintiffs have stated a claim

under § 1985(1). All Defendants argue that Plaintiffs have not. Their arguments are as follows:

(1) Swalwell and the Bass Plaintiffs lack statutory standing to bring suit under § 1985(1);

(2) Swalwell and the Bass Plaintiffs are not “covered federal officials” under § 1985(1); 18 (3) no

Plaintiff can state a claim because members of Congress were not discharging a “duty” on

January 6th; and (4) Plaintiffs have failed to allege a plausible conspiracy among Defendants and

others. The court rejects the first three arguments outright. As to the fourth, the court finds that

Plaintiffs have pleaded a plausible § 1985(1) conspiracy against President Trump, the Oath

Keepers, and Tarrio, but not Trump Jr. and Giuliani.

18
President Trump does not advance these first two arguments against the Blassingame Plaintiffs, and because
statutory standing is not jurisdictional, see Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118,
125–28 (2014), the court treats them as forfeited as to the Blassingame Plaintiffs.

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1. Statutory Standing

Inquiry into a plaintiff’s statutory standing asks whether the plaintiff “has a cause of action

under the statute.” See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128

& n.4 (2014). That question requires a court “to determine the meaning of the congressionally

enacted provision creating a cause of action.” Id. at 128. In doing so, the court “appl[ies]

traditional principles of statutory interpretation.” Id. The ultimate question is not whether in the

court’s “judgment Congress should have authorized [the plaintiff’s] suit, but whether Congress in

fact did so.” Id.

Section 1985 authorizes a “party” that is “injured in his person or property” to bring suit to

recover damages for such injury against any “one or more of the conspirators” of a conspiracy

proscribed by § 1985(1). 42 U.S.C. § 1985(3). No one makes the argument that such broad text

might permit a suit by anyone who can satisfy the requirements of Article III, and likely for good

reason: The Supreme Court in Lexmark rejected such an expansive reading of the remedial

provision of the Lanham Act, which authorizes suit by “‘any person who believes that he or she is

likely to be damaged’ by a defendant’s false advertising.” Lexmark, 572 U.S. at 129 (quoting

15 U.S.C. § 1125(a)). Instead, the court relied on “two relevant background principles”: the “zone

of interests and proximate causality.” Id. at 129. Applying those principles, the Court held,

“supplies the relevant limits on who may sue.” Id. at 134. In this case, there can be no genuine

dispute at this stage that Defendants’ alleged acts were the proximate cause of Plaintiffs’ claimed

injuries, and so the court does not dwell on that requirement. The court focuses on the zone of

interests.

The Supreme Court has “presume[d]” that “a statutory cause of action extends only to

plaintiffs whose interests ‘fall within the zone of interests protected by the law invoked.’” Id. at

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129 (citation omitted). Though originally formulated in the context of challenges under the

Administrative Procedure Act, the Court has “made clear” that the zone-of-interests analysis

“applies to all statutorily created causes of action.” Id. A court should look to “the interests

protected” by the statute to determine whether a plaintiff comes with its zone of interests. Id. at

131.

The interests protected by § 1985(1) are decidedly broad. As the Seventh Circuit observed

in Stern v U.S. Gypsum:

[W]e think it important to note here that Congress, in enacting what
became § 1985(1), did not fashion a narrow and limited remedy
applicable only to the southern states in 1871. The outrageous
conditions there at that time were, no doubt, what induced Congress
to act, but it chose to do so with a statute cast in general language of
broad applicability and unlimited duration.

547 F.2d at 1335 (citations omitted). The court also noted that the Supreme Court had accorded

the Reconstruction-Era civil rights statutes “a sweep as broad as [their] language.” Id. at 1336

(alteration in original) (quoting United States v. Price, 383 U.S. 787, 801 (1966)). Viewed in this

way, the Seventh Circuit had little trouble concluding that § 1985(1)’s protections extended to an

Internal Revenue Service Agent who claimed the defendants had conspired to defame and discredit

him to his superiors. Id. at 1335–36. It strains credulity to think that Reconstruction-Era members

of Congress meant to protect low-level Executive Branch employees but not themselves.

The statutory text supports this conclusion. Section 1985(1) makes unlawful conspiracies

whose object is a person who occupies “any office, trust, or place of confidence under the United

States” or is “any officer of the United States.” 42 U.S.C. § 1985(1). The words used by Congress

here are decidedly expansive and, on their face, would seem to encompass members of Congress.

President Trump nevertheless insists that these words must be read in tandem with their usage in

the Constitution. President Trump thus maintains that the word “officer” includes only persons

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“appoint[ed] by the President, or of one of the courts of justice[,] or heads of departments

authorized by law to make such an appointment.” Thompson Trump Mot. at 16–17 (quoting

United States v. Mouat, 124 U.S. 303, 307 (1888)). Similarly, he contends that the phrase “any

office, trust, or place of confidence” must be read consistent with Article I, § 1, which states that

“no Senator or Representative, or Person holding an Office of Trust or Profit under the United

States,” shall serve as an Elector. Thompson Trump Mot. at 16. Because the Constitution

distinguishes between members of Congress and a “Person holding an Office of Trust or Profit

under the United States,” he asserts, the Bass Plaintiffs and Swalwell do not hold “any office, trust,

or place of confidence” for purposes of § 1985(1). Id. at 17–18. He also focuses on the modifier

“under the United States” and points to Article I, § 6, which disqualifies “a Member of either

House during his Continuance in Office” from “holding any Office under the United States.” Id.

at 17. So, in short, President Trump argues that because the Bass Plaintiffs and Swalwell are not

identified as among those protected by § 1985(1), they cannot bring a claim under it.

The court doubts that Congress intended to use the Constitution as a dictionary for

interpreting the words found in § 1985(1). President Trump points to no case or legislative history

to support his preferred reading. To the contrary, cases like Stern have read the scope of § 1985(1)

broadly, consistent with its words. Cf. 1 Op. O.L.C. 274, 276 (1977) (opining, in the context of

interpreting § 1985(1)’s identically worded, companion criminal statute, 28 U.S.C. § 372, that

“[t]he broad purpose of protecting the Federal presence as fully as possible therefore supports a

broad, rather than a narrow, reading of the word ‘office’”). This court does the same.

Moreover, the Supreme Court has not reflexively imported constitutional meanings into

federal statutes, as President Trump urges the court to do. Lamar v. United States, 240 U.S. 60

(1916), is illustrative. There, a defendant who presented himself as a member of the House of

53
Representatives was convicted of impersonating “an officer of the United States.” Lamar, 240

U.S. at 64. On appeal, the defendant asserted, much like President Trump does here, “that the

interpretation of the Constitution was involved in the decision that a Congressman is an officer of

the United States.” Id. The Court soundly rejected that argument, saying “[a]s to the construction

of the Constitution being involved, it obviously is not.” Id. at 65. “[W]ords may be used in a

statute in a different sense from that in which they are used in the Constitution.” Id. The pertinent

question, the Court said, was what “officer” meant not in the Constitution but in the criminal code.

Id. The same is true here.

To conduct that inquiry the court focuses on the meaning of the words used in § 1985(1).

Courts “normally interpret[] a statute in accord with the ordinary public meaning of its terms at

the time of its enactment. After all, only the words on the page constitute the law adopted by

Congress and approved by the President.” Bostock v. Clayton County, 140 S. Ct. 1731, 1738

(2020). Starting with the word “office,” the Bass Plaintiffs have convincingly shown that

Reconstruction-Era dictionaries defined that term to include legislators. One law dictionary

defined “office” to mean “a right to exercise a public function or employment, and to take the fees

and emoluments belonging to it,” and identified as an example of a “political office” “the office

of the president of the United States, of the heads of departments, [or] of the members of the

legislature.” JOHN BOUVIER, LAW DICTIONARY, ADAPTED TO THE CONSTITUTION AND LAWS OF

THE UNITED STATES OF AMERICA, AND OF THE SEVERAL STATES OF THE UNION 259 (5th ed. 1855)

(emphasis added). 19 That same dictionary defines “officer” to include “members of congress.” Id.

at 260. Other dictionaries from that period are to the same effect. 2 ALEXANDER M. BURRILL, A

LAW DICTIONARY AND GLOSSARY 257 (2d ed. 1867) (defining “office” to mean any “position or

19
According to a Westlaw search, the Supreme Court has cited various editions of Bouvier’s Law Dictionary over
50 times, most recently in 2019 in Peter v. NantKwest, Inc., 140 S. Ct. 365, 372 (2019).

54
station in which a person is employed to perform certain duties,” including “[a] station or

employment conferred by election of the people”); EDWARD HOPPER & J.J.S. WHARTON, LAW

LEXICON, OR DICTIONARY OF JURISPRUDENCE: EXPLAINING THE TECHNICAL WORDS AND PHRASES

EMPLOYED IN THE SEVERAL DEPARTMENTS OF ENGLISH LAW 537 (2d ed. 1860) (defining an

“office” as “that function by virtue whereof a person has some employment in the affairs of

another, whether judicial, ministerial, legislative, municipal, ecclesiastical” (emphasis added)).

The Reconstruction-Era Congress also would have understood the term “trust” to include

members of Congress. In fact, the term had a meaning broader than the term “office.” It included

“a confidence reposed in one person for the benefit of another.” BURRILL, supra, at 549. And,

though the term “place of confidence” does not appear in the legal dictionaries of the day, its

natural meaning must be as all-encompassing as “trust.” There can be little doubt that the plain

text of § 1985(1) reaches members of Congress. 20

President Trump pushes back on none of this definitional history. 21 Instead, he cites

Supreme Court and lower court decisions that use the term “federal officer” in describing the

persons protected under § 1985(1). Thompson Trump Reply at 18. For instance, he cites Kush v.

Rutledge, in which the Court, when describing the “classes of prohibited conspiracy” under § 1985,

said that § 1985(1) made unlawful interference with “the performance of official duties by federal

20
The Bass Plaintiffs also convincingly cite legislative history to buttress their argument that members of Congress
are within the reach of § 1985(1). Thompson Pls.’ Opp’n at 22–27. The court need not recite that legislative history
here because the meaning of the words found in § 1985(1) plainly encompasses members of Congress.
21
President Trump does cite a law review article for the proposition that “in common law, an office of trust or profit
referred exclusively to those in the employ in the executive, judiciary, or the church,” and did not include legislators.
Thompson Trump Mot. at 17–18 (citing Benjamin Cassady, “You’ve Got Your Crook, I’ve Got Mine”: Why the
Disqualification Clause Doesn’t (Always) Disqualify, 32 QUINNIPIAC L. REV. 209, 278–79 (2014)). But this is just
another argument to tie § 1985(1)’s terms to similar words in the Constitution. The cited law review article was
reviewing the historical underpinning of the Impeachment Clause, which states that “Judgment in Cases of
Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office
of honor, Trust or Profit under the United States.” Art. I, § 3, cl. 7 (emphasis added); see also Cassady, supra, at 277
(“This interpretation—that legislators are not officers who hold offices of ‘honor, Trust or Profit’—is buttressed by
the text, history, and structure of the Constitution.”). But for the reasons already discussed, the meaning of the terms
in § 1985(1) is not bound by the meaning of similar terms in the Constitution.

55
officers.” 460 U.S. 719, 724 (1983). Similarly, the Ninth Circuit in Canlis v. San Joaquin Sheriff’s

Posse Comitatus said that “the clear import of [§ 1985(1)’s] language is that the statute’s

protections extend exclusively to the benefit of federal officers.” 641 F.2d 711, 717 (9th Cir.

1981). Other courts have put forth the same formulation. See Miller v. Indiana Hosp., 562

F. Supp. 1259, 1281 (W.D. Pa. 1983) (observing that Ҥ 1985(1) . . . only protects federal

officers”); Lobosco v. Falsetti, No. 09-1455 (JAP), 2010 WL 4366209, at *3 (D.N.J. Oct. 28, 2010)

(citing Miller, 562 F. Supp. 1259); Diulus v. Churchill Valley Country Club, 601 F. Supp. 677,

681 (W.D. Pa. 1985) (“Section 1985(1), by its terms, proscribes only conspiracies which interfere

with the performance of official duties by federal officers.”). From these cases President Trump

asserts that “the phrase, ‘office, trust, or place of confidence under the United States’ in § 1985(1)

is all merged to mean federal officer.” Thompson Trump Reply at 19.

But no case says any such thing. A reading of the above-cited cases makes evident that the

courts were using “federal officer” as shorthand for persons protected under § 1985(1) and, in the

lower-court decisions, to distinguish such persons from state and local officials or private citizens.

Of course, the term “federal officer” never appears in § 198

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6309958. Public record. Not legal advice.