James Blassingame v. Donald Trump

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2022 Decided December 1, 2023

No. 22-5069

JAMES BLASSINGAME AND SIDNEY HEMBY,

APPELLEES

v.

DONALD J. TRUMP,

APPELLANT

Consolidated with 22-7030, 22-7031

Appeals from the United States District Court

for the District of Columbia

(No. 1:21-cv-00858)

(No. 1:21-cv-00586)

(No. 1:21-cv-00400)

Jesse R. Binnall argued the cause for appellant. With him

on the briefs were David A. Warrington, Jonathan M. Shaw,

and Gary M. Lawkowski.

Joseph M. Sellers argued the cause for appellees. With

him on the brief were Brian Corman, Alison S. Deich, Philip

Andonian, Patrick A. Malone, Heather J. Kelly, Anna Kathryn

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Barnes, Matthew Kaiser, Sarah R. Fink, Cameron Kistler,

Erica Newland, Kristy Parker, Helen E. White, Genevieve C.

Nadeau, and Benjamin L. Berwick.

Elizabeth B. Wydra and Brianne J. Gorod were on the

brief for amici curiae Law Professors in support of appellees.

Joshua Matz, Raymond P. Tolentino, Carmen Iguina

Gonzalez, and Alysha M. Naik were on the brief for amici

curiae Former White House and Department of Justice

Officials in support of appellees.

Joseph M. Meyer, Debo P. Adegbile, and Mark C. Fleming

were on the brief for amici curiae Former Diplomats and

Foreign Policy Officials in support of appellees.

Kathleen R. Hartnett and David S. Louk were on the brief

for amicus curiae Jared Holt in support of appellees.

Before: SRINIVASAN, Chief Judge, KATSAS, Circuit Judge,

and ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge SRINIVASAN.

Concurring opinion filed by Circuit Judge KATSAS.

Opinion concurring in part filed by Senior Circuit Judge

ROGERS.

SRINIVASAN, Chief Judge: Since the Supreme Court’s

decision in Nixon v. Fitzgerald, 457 U.S. 731 (1982),

Presidents have carried out their official responsibilities free

from any exposure to civil damages liability. Nixon established

a President’s absolute immunity from civil damages claims

predicated on his official acts. The object of a President’s

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official-act immunity is to assure that he can fearlessly and

impartially discharge the singularly weighty duties of the

office.

The President, though, does not spend every minute of

every day exercising official responsibilities. And when he

acts outside the functions of his office, he does not continue to

enjoy immunity from damages liability just because he happens

to be the President. Rather, as the Supreme Court made clear

in Clinton v. Jones, 520 U.S. 681 (1997), a President’s official-

act immunity by nature does not extend to his unofficial

actions. When he acts in an unofficial, private capacity, he is

subject to civil suits like any private citizen.

This appeal calls for us to apply those key decisional

precedents on presidential immunity to a decidedly

unprecedented event involving the presidency: the riot at the

Capitol on January 6, 2021, just as Congress convened to

tabulate the Electoral College vote and declare the person

elected President. The plaintiffs in the cases before us are

Capitol Police officers and members of Congress who were at

the Capitol that day. They seek civil damages for harms they

allege they suffered arising from the riot. Although they sue

various persons, the sole defendant named in all the cases

consolidated before us is former President Donald J. Trump.

The plaintiffs contend that, during President Trump’s final

months in office, he conspired with political allies and

supporters to obtain a second term despite his defeat in the

2020 election. He allegedly advanced that cause before

January 6 by repeatedly making false claims that the election

might be (and then had been) stolen, filing meritless lawsuits

challenging the election results, and pressuring state and local

officials to reverse the election outcomes in their jurisdictions.

Those efforts allegedly culminated in the 75-minute speech

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President Trump delivered at the rally on January 6. According

to the plaintiffs, President Trump’s actions, including

ultimately his speech on January 6, sparked the ensuing riot at

the Capitol.

President Trump moved in the district court to dismiss the

claims against him, including on grounds of a President’s

official-act immunity from damages liability. The district court

largely rejected his claim of immunity, and President Trump

now appeals. The sole issue before us is whether President

Trump has demonstrated an entitlement to official-act

immunity for his actions leading up to and on January 6 as

alleged in the complaints.

We answer no, at least at this stage of the proceedings.

When a first-term President opts to seek a second term, his

campaign to win re-election is not an official presidential act.

The Office of the Presidency as an institution is agnostic about

who will occupy it next. And campaigning to gain that office

is not an official act of the office. So, when a sitting President

running for a second term attends a private fundraiser for his

re-election effort, hires (or fires) his campaign staff, cuts a

political ad supporting his candidacy, or speaks at a campaign

rally funded and organized by his re-election campaign

committee, he is not carrying out the official duties of the

presidency. He is acting as office-seeker, not office-holder—

no less than are the persons running against him when they take

precisely the same actions in their competing campaigns to

attain precisely the same office.

President Trump himself recognized that he engaged in his

campaign to win re-election—including his post-election

efforts to alter the declared results in his favor—in his personal

capacity as presidential candidate, not in his official capacity

as sitting President. That is evident in his effort to intervene in

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the Supreme Court’s consideration of a post-election lawsuit

challenging the administration of the election in various

battleground states. He expressly filed his motion in the

Supreme Court “in his personal capacity as candidate for re-

election to the office of President” rather than in his official

capacity as sitting President. Trump Mot. to Intervene 3, Texas

v. Pennsylvania, No. 22O155 (U.S. 2020). And he grounded

his claimed right to intervene in the case in his “unique and

substantial personal interests as a candidate for re-election to

the Office of President” rather than in any official interest in

exercising the office’s duties. Id. at 24.

In arguing that he is entitled to official-act immunity in the

cases before us, President Trump does not dispute that he

engaged in his alleged actions up to and on January 6 in his

capacity as a candidate. But he thinks that does not matter.

Rather, in his view, a President’s speech on matters of public

concern is invariably an official function, and he was engaged

in that function when he spoke at the January 6 rally and in the

leadup to that day. We cannot accept that rationale. While

Presidents are often exercising official responsibilities when

they speak on matters of public concern, that is not always the

case. When a sitting President running for re-election speaks

in a campaign ad or in accepting his political party’s

nomination at the party convention, he typically speaks on

matters of public concern. Yet he does so in an unofficial,

private capacity as office-seeker, not an official capacity as

office-holder. And actions taken in an unofficial capacity

cannot qualify for official-act immunity.

While we thus reject President Trump’s argument for

official-act immunity at this stage, that result is necessarily tied

to the need to assume the truth of the plaintiffs’ factual

allegations at this point in the proceedings. President Trump

has not had a chance to counter those allegations with facts of

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his own. When these cases move forward in the district court,

he must be afforded the opportunity to develop his own facts

on the immunity question if he desires to show that he took the

actions alleged in the complaints in his official capacity as

President rather than in his unofficial capacity as a candidate.

At the appropriate time, he can move for summary judgment

on his claim of official-act immunity.

Because our decision is not necessarily even the final word

on the issue of presidential immunity, we of course express no

view on the ultimate merits of the claims against President

Trump. Nor do we have any occasion to address his other

defenses, including his claim that his alleged actions fall within

the protections of the First Amendment because they did not

amount to incitement of imminent lawless action: he did not

seek appellate review at this time of the district court’s denial

of his First Amendment defense, but he could bring that issue

before us in the future. We also do not opine on whether

executive or other privileges might shield certain evidence

from discovery or use as the litigation proceeds. Nor does our

decision on a President’s official-act immunity from damages

liability in a civil suit treat with whether or when a President

might be immune from criminal prosecution.

Instead, we hold only that, taking the allegations in the

plaintiffs’ complaints as true as we must at this point in the

proceedings, President Trump has not demonstrated an

entitlement to dismissal of the claims against him based on a

President’s official-act immunity. In the proceedings ahead in

the district court, President Trump will have the opportunity to

show that his alleged actions in the runup to and on January 6

were taken in his official capacity as President rather than in

his unofficial capacity as presidential candidate.

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I.

A.

Because this appeal comes to us on the denial in relevant

part of motions to dismiss, we “assume the truth of

the . . . factual allegations” in the complaints. Clinton, 520

U.S. at 685. We also draw from the complaints in all three

cases consolidated before us. And because the sole question

we consider is whether President Trump has shown that he

should have been granted a dismissal of the claims against him

on grounds of presidential immunity, we focus on the

allegations about his actions (rather than those of the other

defendants), and, in particular, on the allegations pertaining to

his entitlement to official-act immunity.

1.

President Trump served in office from January 20, 2017

until January 20, 2021. In 2020, he ran for re-election on the

Republican ticket alongside then-Vice President Michael R.

Pence. They faced the Democratic nominee, then-former Vice

President Joseph R. Biden, Jr., and his running mate, then-

Senator Kamala D. Harris.

According to the complaints, President Trump began

sowing doubt about the integrity of the 2020 presidential

election well before the election, often via the platform then

called Twitter, and continued to do so through Election Day.

He posted the numerous tweets recounted in the complaints

(and related here) via his personal account,

@realDonaldTrump, to his 89 million followers. Swalwell

Compl. ¶ 15, J.A. 74; Thompson Compl. ¶ 38, J.A. 151. In

June 2020, for example, President Trump tweeted:

“MILLIONS OF MAIL-IN BALLOTS WILL BE PRINTED

BY FOREIGN COUNTRIES, AND OTHERS. IT WILL BE

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THE SCANDAL OF OUR TIMES!” Swalwell Compl. ¶ 25,

J.A. 76. That August, he stated that “the only way we’re going

to lose this election is if this election is rigged.” Thompson

Compl. ¶ 33, J.A. 150. And in October, he posted a tweet

accusing Democrats of “trying to steal this Election.” Swalwell

Compl. ¶ 25, J.A. 76.

The plaintiffs allege that President Trump communicated

the same message in the first presidential debate, in late

September 2020, where he stated: “[t]his is going to be a fraud

like you’ve never seen”; “[i]t’s a rigged election”; “[t]hey”—

Democrats—“cheat”; and they “found ballots in a wastepaper

basket three days ago, and . . . [t]hey all had the name Trump

on them.” Blassingame Compl. ¶¶ 13–15, J.A. 22–23. The

plaintiffs also contend that, in the same debate, President

Trump declined to conclusively reject the idea that the election

results might warrant a potentially violent response. When

invited by a moderator to “urge his supporters to ‘stay calm’

following the election, and ‘not to engage in any civil unrest,’”

he responded: “If it’s a fair election I am 100% on board. But

if I see tens of thousands of ballots being manipulated, I can’t

go along with that.” Id. ¶ 15, J.A. 23.

On Election Day, November 3, early returns showed

President Trump leading in key states. But as states began

processing more mail-in ballots, his lead started to dwindle.

Swalwell Compl. ¶¶ 27–28, J.A. 76–77. Soon after midnight

on November 4, as returns continued to come in, President

Trump tweeted: “We are up BIG, but they are trying to STEAL

the Election. We will never let them do it. Votes cannot be

cast after the Polls are closed!” Blassingame Compl. ¶ 17,

J.A. 24. The following day, President Trump reiterated his

claims of a stolen election, tweeting: “STOP THE COUNT!”

and “STOP THE FRAUD!” Swalwell Compl. ¶ 32, J.A. 78.

He echoed that claim late that night, tweeting: “I easily WIN

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the Presidency of the United States with LEGAL VOTES

CAST. The OBSERVERS were not allowed, in any way,

shape, or form, to do their job and therefore, votes accepted

during this period must be determined to be ILLEGAL

VOTES. U.S. Supreme Court should decide!” Id. ¶ 33, J.A.

78.

2.

a.

On November 7, all major U.S. news outlets projected that

then-former Vice President Biden and then-Senator Harris

would win the election. Blassingame Compl. ¶ 20, J.A. 25.

President Trump did not concede. Rather, over the ensuing

weeks, he continued to assert that the election had been stolen.

Id. ¶ 21, J.A. 25. For example, he tweeted that Democrats had

“so blatantly cheat[ed] in their attempt to steal the election,

which we won overwhelmingly.” Swalwell Compl. ¶ 36,

J.A. 80.

President Trump also attempted to alter the declared

election results by various means. According to the plaintiffs,

those efforts sought to further the sense among his supporters

that the election had been stolen. Thompson Compl. ¶ 34, J.A.

151. For instance, President Trump and his allies filed 62

lawsuits in state and federal courts around the country that

sought, on various theories, to overturn the results in key states.

Swalwell Compl. ¶ 60, J.A. 85; Thompson Compl. ¶ 36, J.A.

151. “Virtually all [of] th[e] lawsuits were rejected outright.”

Swalwell Compl. ¶ 61, J.A. 86; see also Blassingame Compl.

¶ 21, J.A. 25. In addition, President Trump tried to persuade

state and local officials in Michigan, Pennsylvania, and

Georgia to use their offices to change the declared results in

their jurisdictions. Swalwell Compl. ¶¶ 37–55, J.A. 80–84;

Thompson Compl. ¶¶ 46–52, J.A. 153–54.

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b.

When members of the Electoral College met in their

respective states on December 14, they collectively cast 306

electoral votes for then-President-elect Biden and 232 electoral

votes for President Trump. According to the complaints,

President Trump then began focusing his efforts on Congress,

which was set to meet on January 6 to officially tabulate

electoral votes and declare the next President pursuant to the

Electoral Count Act, 3 U.S.C. §§ 1–22. Blassingame Compl.

¶ 30, J.A. 29; Thompson Compl. ¶ 55, J.A. 155.

On December 19, President Trump posted a tweet

referencing a report “alleging election fraud ‘more than

sufficient’ to swing victory to Trump.” Swalwell Compl. ¶ 86,

J.A. 92. President Trump stated that it was “[s]tatistically

impossible” for him “to have lost the 2020 Election.” Id. He

added that there would be a “[b]ig protest in D.C. on January

6th,” and he called on his supporters to attend: “Be there, will

be wild!” Id. A week later, President Trump again promoted

the planned protest via Twitter, this time asserting that the

Department of Justice and the FBI had “done nothing about the

2020 Presidential Election Voter Fraud, the biggest SCAM in

our nation’s history, despite overwhelming evidence. They

should be ashamed. History will remember. Never give up.

See everyone in D.C. on January 6th.” Id. ¶ 56, J.A. 84.

Meanwhile, plans for the January 6 event, which became

known as the “Save America” rally, took shape. According to

the complaints, the rally’s organizers—including the group

Women for America First, at least one Trump campaign staff

member, and a Trump campaign fundraiser—secured a permit

to hold the event at the Ellipse, a large lawn just south of the

White House. Blassingame Compl. ¶ 59, J.A. 38; Swalwell

Compl. ¶¶ 97, 103, J.A. 98–99; Thompson Compl. ¶ 69, J.A.

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159. The permit listed the Trump campaign’s director of

finance operations as the rally’s “VIP Lead,” and named Event

Strategies Inc.—which received payments from President

Trump’s campaign roughly three weeks before January 6—as

the event’s production vendor. Blassingame Compl. ¶ 31,

J.A. 29; Swalwell Compl. ¶ 97, J.A. 98; Thompson Compl.

¶ 68, J.A. 159.

More generally, the complaints allege that the Save

America rally was privately funded and that the Trump

campaign or persons associated with it were involved in

organizing and funding it, although there is some variation

among the complaints on the particulars. According to one

complaint, the rally “was a private event, organized in part by

[President] Trump’s former campaign staff” and “arranged and

funded by a small group including a top Trump campaign

fundraiser and donor.” Blassingame Compl. ¶ 59, J.A. 38

(internal quotation marks omitted). Another complaint alleges

that the Trump campaign itself funded the rally. See Swalwell

Compl. ¶ 97, J.A. 98. And the third complaint contends that “a

top Trump campaign fundraiser oversaw the logistics,

budgeting, funding and messaging” for the rally. Thompson

Compl. ¶ 68, J.A. 159. One of the complaints also alleges that

President Trump participated in planning the rally, including

by weighing in on the speaker lineup and music selection. Id.

¶ 69, J.A. 159.

The complaints also describe President Trump’s

promotion of the rally via Twitter in the immediate leadup to

the event. See Blassingame Compl. ¶¶ 36, 38, J.A. 32–34;

Swalwell Compl. ¶¶ 57, 98–99, J.A. 84–85, 98. He reiterated

his claims of election fraud on January 5, saying: “Washington

is being inundated with people who don’t want to see an

election victory stolen by emboldened Radical Left

Democrats.” Swalwell Compl. ¶ 57, J.A. 85. He also

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repeatedly emphasized Vice President Pence’s role in the

counting of electoral votes. See U.S. Const. art. I, § 3, cl. 4; id.

amend. XII; 3 U.S.C. §§ 11, 15–18. The night before the rally,

for instance, President Trump tweeted: “Many States want to

decertify the mistake they made in certifying incorrect & even

fraudulent numbers in a process NOT approved by their State

Legislatures (which it must be). Mike [Pence] can send it

back!” Swalwell Compl. ¶ 98, J.A. 98.

c.

The Save America rally began at 7:00 AM on January 6 at

the Ellipse. Blassingame Compl. ¶ 58, J.A. 37. For several

hours, a slew of prominent supporters of President Trump gave

speeches decrying election fraud and demanding corrective

action. Swalwell Compl. ¶¶ 101–20, J.A. 99–102.

President Trump was the final speaker. He took the stage

at around noon and spoke for roughly 75 minutes. Id. ¶ 121,

J.A. 102. Although the complaints do not contain the full text

of his speech, they quote liberally from it, and the district court

“considered it in its entirety, analyzing it beyond the words

quoted in the Complaints.” Thompson v. Trump, 590

F. Supp. 3d 46, 83 (D.D.C. 2022); e.g., Blassingame Compl. ¶¶

60, 220, J.A. 38, 65; Swalwell Compl. ¶¶ 3, 121–28, 181, 211,

J.A. 71, 102–03, 118–19, 124–25; Thompson Compl. ¶¶ 82–

89, J.A. 162–65. The parties have thus treated the full speech

as incorporated into the complaints, and we will do the same.

See Banneker Ventures, LLC v. Graham, 798 F.3d 1119, 1133

(D.C. Cir. 2015). (A full transcript of President Trump’s

speech is available at Read: Former President Donald Trump’s

January 6 Speech, CNN (Feb. 8, 2021, 6:16 PM), https://www

.cnn.com/2021/02/08/politics/trump-january-6-speech-

transcript/index.html [https://perma.cc/MY5A-5UYH])

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At the outset of his speech, President Trump proclaimed

that “[a]ll of us here today do not want to see our election

victory stolen by emboldened radical left Democrats, which is

what they’re doing, and stolen by the fake news media. That’s

what they’ve done and what they’re doing. We will never give

up. We will never concede. It doesn’t happen. You don’t

concede when there’s theft involved.” He then proceeded to

allege election fraud in various battleground states and to call

on Republicans in Congress and Vice President Pence to “do

the right thing” and to send the election back to the states. He

alleged that there had been “fraud on a scale never seen

before,” and detailed, at length, allegations of fraud in several

battleground states won by then-President-elect Biden. He

urged that “[w]e’re going to have to fight much harder and

Mike Pence is going to have to come through for us.”

Throughout his remarks, President Trump enlisted his

supporters in his self-described effort to “stop the steal.” Near

the outset of his speech, he stated that “[w]e have come to

demand that Congress do the right thing and only count the

electors who have been lawfully slated . . . . I know that

everyone here will soon be marching over to the Capitol

building to peacefully and patriotically make your voices

heard.” Later, he said that “[w]hen you catch somebody in a

fraud, you’re allowed to go by very different rules.”

At one point near the end of his speech, President Trump

briefly turned from alleging fraud and “challenging the

certification of the election” to “calling on Congress and the

state legislatures to quickly pass sweeping election reforms.”

He said that “[w]e must stop the steal and then we must ensure

that such outrageous election fraud never happens again,” and,

in the latter connection, he listed numerous policy proposals

achievable “[w]ith your help.” Many of the proposals

concerned the conduct of elections: adopting “powerful

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requirements for voter ID”; requiring “proof of American

citizenship in order to vote in American elections”; banning

“ballot harvesting,” “the use of unsecured drop boxes to

commit rampant fraud,” and “universal, unsolicited mail-in

balloting”; and restoring “the vital civic tradition of in-person

voting on Election Day.”

At the close of his remarks, President Trump reiterated:

“Something’s wrong here. Something’s really wrong. Can’t

have happened. And we fight. We fight like hell and if you

don’t fight like hell, you’re not going to have a country

anymore.” He then ended his speech by saying: “So, we’re

going to, we’re going to walk down Pennsylvania

Avenue . . . and we’re going to the Capitol, and we’re going to

try and give—the Democrats are hopeless. They’re never

voting for anything . . . . But we’re going to try to give our

Republicans, the weak ones, because the strong ones don’t

need any of our help, we’re going to try and give them the kind

of pride and boldness that they need to take back our country.

So, let’s walk down Pennsylvania Avenue. I want to thank you

all. God bless you and God bless America.”

d.

By 12:53 PM—as President Trump was still speaking at

the Ellipse—a crowd had formed at the Capitol, and members

of the crowd broke through the outer security barriers.

Blassingame Compl. ¶¶ 65–66, J.A. 39–40; Swalwell Compl.

¶ 129, J.A. 104; Thompson Compl. ¶¶ 94–99, J.A. 166–67.

They were soon joined by people who had made their way from

the Ellipse to the Capitol after President Trump finished his

speech. Thompson Compl. ¶¶ 100–01, J.A. 167. President

Trump returned to the White House, where he watched

television coverage of the events unfolding at the Capitol.

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Blassingame Compl. ¶¶ 79, 94, J.A. 42, 44–45; Thompson

Compl. ¶ 106, J.A. 168.

Members of the crowd overcame Capitol Police officers,

some of whom were injured while defending the Capitol from

the rioters’ advance. Among those injured was plaintiff Sidney

Hemby, who was crushed against doors on the east side of the

Capitol, struck with fists and various objects, and sprayed with

chemicals. Blassingame Compl. ¶¶ 83–89, 138–44, J.A. 43–

44, 52. After rioters went inside the building, Capitol Police

announced a full lockdown of the Capitol, and both houses of

Congress stopped counting Electoral Votes and called recesses.

See id. ¶ 92, J.A. 44; Swalwell Compl. ¶ 137, J.A. 106.

At 2:24 PM, shortly after his supporters breached the

Capitol, President Trump tweeted: “Mike Pence didn’t have

the courage to do what should have been done to protect our

Country and our Constitution, giving States a chance to certify

a corrected set of facts, not the fraudulent or inaccurate ones

which they were asked to previously certify. USA demands the

truth!” Swalwell Compl. ¶ 138, J.A. 107. Fourteen minutes

later, he added: “Please support our Capitol Police and Law

Enforcement. They are truly on the side of our Country. Stay

peaceful!” Blassingame Compl. ¶ 118, J.A. 48.

Inside the Capitol, some lawmakers, including some of the

plaintiffs in these cases, became trapped inside the chambers as

rioters advanced. Swalwell Compl. ¶¶ 9–11, 137, J.A. 72–73,

106; Thompson Compl. ¶¶ 182–83, J.A. 183. Capitol Police

officers held off the rioters at gunpoint, deployed tear gas, and

told the trapped lawmakers to put on gas masks. Swalwell

Compl. ¶¶ 137, 233, J.A. 106, 129; Thompson Compl. ¶ 175,

J.A. 181. One floor below, in the Capitol Crypt, a group of

Capitol Police officers, including plaintiff James Blassingame,

attempted to fend off another group of rioters. The rioters

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struck Officer Blassingame with fists and weapons and

subjected him to racial epithets and threats. Blassingame

Compl. ¶¶ 95–113, J.A. 45–47.

At 4:17 PM, President Trump posted on Twitter a recorded

video statement in which he directed the rioters to go home.

Swalwell Compl. ¶ 147, J.A. 108–09. He also repeated his

claim that the election had been stolen and added: “I know

your pain, I know you’re hurt. . . . We love you. You’re very

special.” Id., J.A. 109. And at 6:01 PM, after Capitol Police

began clearing the building, President Trump tweeted: “These

are the things and events that happen when a sacred landslide

election victory is so unceremoniously & viciously stripped

away from great patriots who have been badly & unfairly

treated for so long. Go home with love & in peace. Remember

this day forever!” Id. ¶ 150, J.A. 109–10.

The riot resulted in injuries to 140 police officers and

claimed several lives. Id. ¶ 149, J.A. 109. Two weeks later, on

January 20, then-President-elect Biden and then-Vice

President-elect Harris took office.

B.

1.

The three cases consolidated in this appeal involve

complaints brought against President Trump and others in

connection with the January 6 riot. The plaintiffs are Capitol

Police officers and members of Congress who were at the

Capitol that day. They seek recovery for physical injuries and

emotional distress arising from the riot. Blassingame Compl.

¶¶ 150–228, J.A. 55–67; Swalwell Compl. ¶¶ 224–26,

J.A. 127; Thompson Compl. ¶¶ 151–267, J.A. 178–200. As

relief, they ask for damages (and other remedies), including

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from President Trump. Blassingame Compl., J.A. 67–68;

Swalwell Compl., J.A. 132–33; Thompson Compl., J.A. 201.

The plaintiffs sue President Trump in his personal

capacity. Blassingame Compl. ¶ 40, J.A. 34; Swalwell Compl.,

J.A. 70; Thompson Compl., J.A. 136. Each of the complaints

alleges that “[a]ll his conduct inciting his followers” as

described in the complaints “was conducted in his personal

capacity as a candidate for elected office, not in any official

capacity as President.” Blassingame Compl. ¶ 40, J.A. 34; see

Swalwell Compl. ¶¶ 15, 152, J.A. 74, 110; Thompson Compl.

¶¶ 22, 263, J.A. 146, 200. “For example,” one complaint

elaborates, President Trump “tweeted from his personal

Twitter account (@realDonaldTrump) and not from the

official, White House, [T]witter account, and he spoke at the

January 6 rally in his capacity as a losing candidate for the

Presidency.” Swalwell Compl. ¶ 15, J.A. 74; see Blassingame

Compl. ¶ 18, J.A. 24; Thompson Compl. ¶ 22, J.A. 146.

Each of the complaints asserts a claim against President

Trump under 42 U.S.C. § 1985, which prohibits conspiring to

prevent anyone from holding a federal office or from

performing the duties of a federal office. Blassingame Compl.

¶¶ 213–24, J.A. 63–67; Swalwell Compl. ¶¶ 166–84,

J.A. 114–19; Thompson Compl. ¶¶ 259–67, J.A. 199–200.

The Section 1985 claims are generally based on the contention

that President Trump engaged with others in a plan to prevent

Congress from discharging its duty to count electoral votes and

to prevent then-President-elect Biden and then-Vice-President-

elect Harris from assuming office. Two of the complaints

include various claims against President Trump under District

of Columbia law. Blassingame Compl. ¶¶ 150–212, 225–28,

J.A. 55–63, 67; Swalwell Compl. ¶¶ 192–261, J.A. 120–32.

And one of the complaints contains a claim against President

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Trump under 42 U.S.C. § 1986 for failing to stop the riot after

it started. Swalwell Compl. ¶¶ 185–91, J.A. 119–20.

2.

President Trump moved to dismiss the claims against him

on various grounds. Of principal relevance, he argued that he

is entitled to official-act immunity under Nixon v. Fitzgerald,

457 U.S. 731 (1982), as to all the claims against him.

The district court largely rejected President Trump’s claim

of immunity. It reasoned that President Trump’s alleged acts—

his tweets alleging fraud in the election, his efforts to persuade

state and local officials to change election outcomes, his

lawsuits challenging the election results, his participation in the

planning of the January 6 rally, and his speech at that rally—

were aimed at remaining in office for a second term, which, to

the court, was not an official function of the presidency.

Thompson, 590 F. Supp. 3d at 82–84. The court, however,

granted President Trump immunity as to the claim under 42

U.S.C. § 1986 for failing to stop the riot. That claim, the court

held, sought to hold President Trump liable for failing to

exercise his official presidential powers and so fell within his

official-act immunity. Id. at 84–85.

Beyond asserting official-act immunity, President Trump

also sought dismissal of the claims against him on the ground

that they seek to hold him liable for speech protected by the

First Amendment. The district court rejected that argument.

The court held that President Trump’s speech at the January 6

rally lay beyond the protection of the First Amendment because

it amounted to incitement of imminent lawless action. Id. at

115–18; see Brandenburg v. Ohio, 395 U.S. 444 (1969).

President Trump did not attempt to appeal the district court’s

denial of his First Amendment defense at this stage, see 28

19

U.S.C. § 1292(b), so his potential entitlement to a dismissal on

First Amendment grounds is not before us in this appeal.

The district court dismissed several of the claims brought

under District of Columbia law as inadequately pleaded on the

merits. Thompson, 590 F. Supp. 3d at 121–22, 124–25, 126.

But it held that the plaintiffs had plausibly alleged that

President Trump had violated Section 1985 and so allowed the

Section 1985 claims against President Trump to proceed. Id.

at 101–05. And the court reached the same conclusion as to

some of the claims under District of Columbia law. Id. at 119–

21, 122–24, 125. Those claims against President Trump thus

remain live and await resolution.

II.

President Trump appeals the district court’s denial of his

claim of official-act immunity. That is the sole issue before us.

While the denial of a motion to dismiss ordinarily is not

immediately appealable, an order denying a claim of official

immunity is an immediately appealable collateral order. See

Nixon, 457 U.S. at 742–43. In considering President Trump’s

claim of immunity, we review the “district court’s legal

determinations de novo and assume the truth of the [plaintiffs’]

material factual allegations.” Blumenthal v. Trump, 949 F.3d

14, 18 (D.C. Cir. 2020); see also Clinton, 520 U.S. at 685.

A.

The Supreme Court’s decisions in Nixon v. Fitzgerald and

Clinton v. Jones establish the basic framework for our analysis.

In Nixon, A. Ernest Fitzgerald sought civil damages from

President Richard M. Nixon and other officials for allegedly

eliminating his job at the Department of the Air Force in

retaliation for unflattering congressional testimony he had

provided about his superiors. 457 U.S. at 734, 739. The Court

20

concluded that President Nixon, “as a former President of the

United States, [wa]s entitled to absolute immunity from

damages liability predicated on his official acts.” Id. at 749.

Such immunity, the Court said, is a “functionally mandated

incident of the President’s unique office, rooted in the

constitutional tradition of the separation of powers and

supported by our history.” Id.

The presidential-immunity doctrine articulated in Nixon is

capacious by design. In pre-Nixon official-immunity cases

involving other officials, the Court had employed a

“‘functional’ approach” under which, for most officials, “the

scope of the [immunity] defense varied in proportion to the

nature of [the officials’] official functions and the range of

decisions that conceivably might be taken in ‘good faith.’” Id.

at 746 (discussing Scheuer v. Rhodes, 416 U.S. 232, 247

(1974)); see also id. at 755. But the President, the Nixon Court

explained, “occupies a unique position in the constitutional

scheme.” Id. at 749. As the embodiment of the executive

branch, he “must make the most sensitive and far-reaching

decisions entrusted to any official under our constitutional

system.” Id. at 752. The principal rationale for official

immunity—“providing an official ‘the maximum ability to deal

fearlessly and impartially with’ the duties of his office”—thus

applies to the President with pronounced force. Id. (quoting

Ferri v. Ackerman, 444 U.S. 193, 203 (1979)). For that reason,

the Court found it “appropriate to recognize absolute

Presidential immunity from damages liability for acts within

the ‘outer perimeter’ of his official responsibility.” Id. at 756.

The decisions from which Nixon drew the outer-perimeter

test make evident that a President’s official responsibilities

encompass more than just those acts falling within the office’s

express “constitutional and statutory authority.” Id. at 757.

Official responsibilities also include “discretionary acts”

21

within the “concept of duty” associated with the office. Barr

v. Matteo, 360 U.S. 564, 575 (1959) (plurality opinion). Put

somewhat differently: an act lies within the outer perimeter of

an official’s duties if it is “the kind of act not manifestly or

palpably beyond [the official’s] authority, but rather having

more or less connection with the general matters committed by

law to his control or supervision.” Martin v. D.C. Metro.

Police Dep’t, 812 F.2d 1425, 1429 (D.C. Cir. 1987), overruled

on other grounds by Crawford-El v. Britton, 93 F.3d 813 (D.C.

Cir. 1996) (en banc), rev’d 523 U.S. 574 (1998) (quoting

Briggs v. Goodwin, 569 F.2d 10, 16 (D.C. Cir. 1977)); accord

Spalding v. Vilas, 161 U.S. 483, 498–99 (1896).

Applying the outer-perimeter test to President Nixon’s

alleged conduct, the Nixon Court had little trouble holding that

President Nixon was entitled to official immunity. See 457

U.S. at 756–57. President Nixon, the Court reasoned, had the

“constitutional and statutory authority to prescribe the manner

in which the Secretary will conduct the business of the Air

Force,” including by “prescrib[ing] reorganizations and

reductions in force.” Id. at 757. The Court reached that

conclusion notwithstanding Fitzgerald’s contentions that his

dismissal had been retaliatory and that “no federal official

could, within the outer perimeter of his duties of office,”

dismiss Fitzgerald without satisfying the applicable for-cause

removal standard “in prescribed statutory proceedings.” Id. at

756. Denying immunity on those grounds, the Court explained,

would require a “highly intrusive” examination of “the

President’s motives” and “subject the President to trial on

virtually every allegation that an action was unlawful, or was

taken for a forbidden purpose.” Id. Doing so would therefore

“deprive absolute immunity of its intended effect.” Id.

The Court revisited a President’s official-act immunity

fifteen years later in Clinton, its most recent case on the subject.

22

In that case, Paula Jones sought civil damages from President

William J. Clinton. 520 U.S. at 684–85. She alleged that

President Clinton, while serving as Governor of Arkansas, had

made unwelcome sexual advances towards her and then

retaliated against and later defamed her for rejecting his

advances. Id. at 685. President Clinton moved to dismiss,

arguing that as President, he was entitled to temporary

immunity from the lawsuit until after his presidency. Id. at

686–87. The Court disagreed, reasoning that President

Clinton’s alleged actions—with the potential exception of

allegedly defamatory statements made after he became

President, see id. at 686 & n.3—were “unrelated to any of his

official duties as President of the United States and, indeed,

occurred before he was elected to that office,” id. at 686.

Clinton confirmed that the absolute presidential immunity

recognized in Nixon is an “official immunity,” that extends no

further than the outer perimeter of a President’s official

responsibility. Id. at 693–94 (quoting Ferri, 444 U.S. at 203).

That is because the primary justification for affording the

President official-act immunity from civil damages liability—

“enabling [him] to perform [his] designated functions

effectively without fear that a particular decision may give rise

to personal liability”—provides “no support for an immunity

for unofficial conduct.” Id. at 692–94. To the contrary, an

immunity for unofficial acts would be “grounded purely in the

identity of [the President’s] office,” id. at 695, contravening the

settled understanding that immunity is based on “the nature of

the function performed, not the identity of the actor who

performed it,” id. (quoting Forrester v. White, 484 U.S. 219,

229 (1988)). Because Jones’s allegations involved President

Clinton’s “purely private acts” rather than “acts taken in his

public character,” he was not entitled to official immunity,

even on a temporary basis. Id. at 696 (internal quotation marks

and citation omitted).

23

Together, Nixon and Clinton establish three governing

principles. First, the President is entitled to official immunity

from civil damages liability based on actions within the “outer

perimeter” of official presidential responsibility, including

discretionary acts within the concept of duty associated with

the presidency. Second, the President is subject to civil

damages suits based on actions taken in an unofficial, private

capacity to the same extent as any private citizen. And third,

the President’s actions do not fall beyond the outer perimeter

of official responsibility merely because they are unlawful or

taken for a forbidden purpose. Rather, the President’s official

immunity insulates all of his official actions from civil

damages liability, regardless of their legality or his motives.

B.

President Trump maintains that his actions as alleged in

the complaints fall within the outer perimeter of official

presidential responsibility, entitling him to official-act

immunity as to all the claims against him. His primary

argument is that his alleged actions leading up to and on

January 6 were official presidential actions because they

amounted to speech on matters of public concern. In the

alternative, he submits that those actions were official because

they came within his constitutional duty under the Take Care

Clause. We are unpersuaded by either argument.

1.

We begin with President Trump’s principal contention:

that a President enjoys absolute immunity from civil damages

liability whenever he speaks on matters of public concern.

Without reaching the question whether all of President

Trump’s pertinent actions alleged in the complaints in fact

involved speech on matters of public concern, we reject his

submission that such speech invariably counts as official

24

activity. To endorse that argument would be to establish “an

immunity from suit for unofficial acts grounded purely in the

identity of [the President’s] office.” Clinton, 520 U.S. at 695.

The salient question in the cases before us is whether President

Trump took the actions alleged in the complaints in his official

capacity or instead in his private capacity. The question

whether those actions involved speech on matters of public

concern bears no inherent connection to the essential

distinction between official and unofficial acts.

a.

The most basic premise of President Trump’s argument—

that speaking on matters of public concern is something

Presidents regularly do in the exercise of official

responsibilities—is incontestable. “The President of the

United States possesses an extraordinary power to speak to his

fellow citizens and on their behalf.” Trump v. Hawaii, 138

S. Ct. 2392, 2417–18 (2018). That power—famously labeled

the presidential “bully pulpit” by Theodore Roosevelt—is an

everyday tool of the presidency. And many uses of the

presidential bully pulpit fall comfortably “within the ‘outer

perimeter’ of [the President’s] official responsibility.” Nixon,

457 U.S. at 756.

True, there is no Bully Pulpit Clause in the Constitution.

But as we have explained, the outer perimeter of official

responsibility extends beyond a President’s expressly

enumerated powers to encompass “discretionary acts” within

the “concept of duty” associated with the office. Barr, 360 U.S.

at 575 (plurality opinion). The President thus acts within the

outer perimeter of his official functions when he announces his

intention to issue an executive order, eulogizes the fallen leader

of an ally, or offers the nation’s condolences and support to a

community reeling from a tragedy.

25

President Trump’s argument, though, reaches

considerably further: he insists that all of a President’s speech

on matters of public concern, as a categorical rule, is an

exercise of official presidential responsibility. That is a

sweeping proposition, and one that ultimately sweeps too far.

The notion that speech must relate to a matter of public concern

does not rule out much when the speaker is the President. “In

view of the visibility of his office and the effect of his actions

on countless people,” Nixon, 457 U.S. at 753, a great deal of

what the President does or speaks about becomes a matter of

public concern merely by virtue of the identity of his office,

even if it would not amount to a matter of public concern if

performed or said by someone else.

To see how far a public-concern test reaches, consider

initially an example involving conduct alone rather than

speech—in particular, sexual misconduct. Such conduct, as

President Trump concedes, is presumably of a “manifestly

private nature,” undertaken in a private, unofficial capacity.

Trump Reply Br. 12; see also Clinton, 520 U.S. at 686. Yet

alleged sexual misconduct involving the President is also

plainly “a subject of legitimate news interest; that is, a subject

of general interest and of value and concern to the public.”

Snyder v. Phelps, 562 U.S. 443, 453 (2011) (quoting City of

San Diego v. Roe, 543 U.S. 77, 83–84 (2004) (per curiam)). To

immunize a President from civil damages liability for alleged

sexual misconduct during his presidency just because the

conduct is a matter of public concern, then, would be to

“construct an immunity from suit for unofficial acts grounded

purely in the identity of his office.” Clinton, 520 U.S. at 695.

President Trump’s proposed public-concern test would

unduly broaden official-act immunity in much the same way

for presidential speech. The Supreme Court has “never

suggested that the President . . . has an immunity that extends

26

beyond the scope of any action taken in an official capacity.”

Id. at 694. President Trump’s public-concern standard, though,

would do just that. When the speaker is the President, speech

undertaken in a plainly and purely unofficial capacity will often

involve a matter of public concern. Yet President Trump’s test

would still grant immunity in that circumstance, even though

there is “no support for an immunity for unofficial conduct” (or

speech). Id.

As an example, consider a situation directly germane to the

cases before us in which President Trump publicly volunteered

that he was acting—and speaking—in an unofficial, private

capacity. In the period after the 2020 election and before

January 6, the Supreme Court considered an effort by Texas to

challenge the administration of the election in several

battleground states in which then-President-elect Biden had

been declared the winner. Texas v. Pennsylvania, No. 22O155

(U.S. 2020). President Trump moved to intervene in the case.

In doing so, he specifically explained to the Supreme Court

(and captioned his filing accordingly) that he sought to

“intervene in this matter in his personal capacity as a candidate

for re-election to the office of President of the United States.”

Motion of Donald J. Trump, President of the United States, to

Intervene in his Personal Capacity as Candidate for Re-

Election, Proposed Bill of Complaint in Intervention, and Brief

in Support of Motion to Intervene 14, Texas v. Pennsylvania,

No. 22O155 (U.S. Dec. 9, 2020) (Trump Mot. to Intervene).

He relatedly elaborated that he wished “to intervene to protect

his unique and substantial personal interests as a candidate for

re-election to the Office of President.” Id. at 24.

President Trump, then, affirmatively communicated to the

Supreme Court (and the public) that he was acting and speaking

in that matter in his “personal capacity” as a candidate for re-

election—indeed, he explained that his reason for wanting to

27

participate in the case was a “substantial personal” one rather

than an official one. That stands in sharp contrast with other

cases in which he—like all Presidents—had filed briefs in the

Supreme Court in his “official capacity as President of the

United States.” See, e.g., Brief for the Petitioners at II, Trump

v. Hawaii, 138 S. Ct. 2392 (No. 17-965). But while President

Trump’s effort to participate in Texas v. Pennsylvania was

made in an expressly and self-consciously personal, unofficial

capacity, the content of his speech in his submission

undoubtedly involved a matter of significant public concern:

his challenge to the election results in various pivotal states,

whose “electors [would] determine the outcome of the

election.” Trump Mot. to Intervene 27.

As that example illustrates, an immunity for all

presidential speech on matters of public concern—without

regard to the context in which the President speaks—would be

grounded purely in “the identity of the actor who performed it”

rather than “the nature of the function performed.” Clinton,

520 U.S. at 695 (quoting Forrester, 484 U.S. at 229). Such a

result is “unsupported by precedent.” Id. And it is unsupported

by the basic object of granting a President official-act

immunity: assuring that the President is not “unduly cautious

in the discharge of his official duties.” Id. at 694 (emphasis

added) (quoting Nixon, 457 U.S. at 752 n.32). That concern

necessarily has no salience when the President acts—by his

own admission—in an unofficial, private capacity.

b.

As President Trump’s intervention motion in Texas v.

Pennsylvania highlights, whether the President speaks (or

engages in conduct) on a matter of public concern bears no

necessary correlation with whether he speaks (or engages in

conduct) in his official or personal capacity. And because it is

28

the latter question that governs the availability of presidential

immunity—as a matter both of precedent and of the essential

nature of an immunity for (and only for) official acts—we must

reject President Trump’s proposed public-concern test as ill-

suited to the inquiry.

President Trump’s intervention motion is telling in a

related respect as well, which pertains to identifying when a

President acts in an official or private capacity in the specific

circumstances of the cases before us. The motion expressly

recognizes, as we hold today, that when a sitting President acts

as a “candidate for re-election,” he does so in his “personal

capacity,” not in an official capacity. Trump Mot. to Intervene

14. Otherwise said, a sitting President, just like the candidates

he runs against, is subject to civil damages liability for his

actions constituting re-election campaign activity.

The principle that an incumbent President seeks re-

election in his private capacity rather than in his official

capacity finds its roots in the Framing. Madison explained that

“[a] dependence on the people is no doubt the primary controul

on the government.” The Federalist No. 51, at 349 (James

Madison) (Jacob E. Cooke ed., 1961). To that end, the Framers

“render[ed] the President directly accountable to the people

through regular elections.” Seila Law LLC v. CFPB , 140 S. Ct.

2183, 2203 (2020). And “every practicable obstacle” was

imposed to prevent “cabal, intrigue and corruption” from

giving an incumbent President a structural electoral

advantage—including the exclusion from service in the

Electoral College of “all those who from situation might be

suspected of too great devotion to the president in office.” The

Federalist No. 68, supra, at 459 (Alexander Hamilton); see also

U.S. Const. art. II, § 1, cl. 2.

29

The essence of those Framing-era principles, in the words

of Chief Justice Marshall, is that “the president is elected from

the mass of the people, and, on the expiration of the time for

which he is elected, returns to the mass of the people again.”

United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807)

(Marshall, Circuit Justice). That fundamental understanding

holds regardless of whether the person elected to serve as the

next President also happens to be the incumbent. A sitting

President has no inherently greater claim to serving the next

four-year term than does any other candidate. And if an

incumbent President seeks and ultimately wins re-election, he

does so in the same manner as anyone else vying for the office:

he “is elected from the mass of the people.” Id.

It follows that, when a sitting President acts in his capacity

as a candidate for re-election, he acts as office-seeker, not

office-holder. The presidency itself has no institutional interest

in who will occupy the office next. Campaigning to attain that

office thus is not an official function of the office. Rather, an

incumbent President’s interests in winning re-election have the

same purely private character as those of his challengers—i.e.,

“substantial personal interests as a candidate” to attain (or

retain) the office. Trump Mot. to Intervene 24. Accordingly,

a President acts in a private, unofficial capacity when engaged

in re-election campaign activity.

The executive branch’s own views and practice reinforce

the point. In 1982, just a few months before the Supreme Court

decided Nixon, the Department of Justice’s Office of Legal

Counsel (OLC) advised President Reagan that “funds

appropriated for the official functioning of the offices of the

President and the Vice President may be used for travel

expenses only if the travel is reasonably related to an official

purpose,” and that “appropriated funds” thus “should not be

used to pay for political events.” Payment of Expenses

30

Associated with Travel by the President and Vice President, 6

Op. O.L.C. 214, 215–16 (1982). Political events, OLC

reasoned, generally have “no reasonable connection” to the

“official purposes” served by appropriated funds. Id. at 216.

“As a general rule,” moreover, “Presidential and Vice

Presidential travel should be considered ‘political’ if its

primary purpose involves their positions as leaders of their

political party”—as would be the case with “[a]ppearing at

party functions, fundraising, and campaigning for specific

candidates,” of course including for oneself. Id. at 217 (citation

omitted).

The executive branch itself thus considers its own chief

office-holder’s campaign for re-election to lie well outside his

official functions. A contrary conclusion would grant a sitting

President immunity based “purely in the identity of his office,”

improperly treating his efforts to gain the office for a second

term as an official act of the office. Clinton, 520 U.S. at 695.

Compare, for instance, a former one-term President who

runs to regain the presidency for a second, non-consecutive

term with a current one-term President who runs to retain office

for a second straight term. Whether a one-term President runs

to regain the office or to retain it, the object is the same: to

serve (again) as President in the next term. And with respect

to their campaign-related activity to attain that objective, there

is no basis for cloaking a sitting President running for the office

with an immunity—and resulting advantage—that a former

President running for the office would lack. Both act in their

“personal capacity as a candidate for re-election to the office of

President.” Trump Mot. to Intervene 14. President Trump’s

proposed public-concern standard, though, would treat them

differently: the sitting President would enjoy absolute

immunity for all speech on a matter of public concern, even

purely campaign speech given strictly in his capacity as

31

candidate, whereas the former President would get no

immunity for precisely the same campaign speech.

Consider, for example, a speech at a political party’s

convention accepting the party’s nomination as its candidate

for President. Such a speech is inherently given in the

nominee’s private capacity as office-seeker. That is no less

true when the party’s nominee is the sitting President: a sitting

President gives the acceptance speech at his party’s convention

only if he seeks and wins the party’s nomination—or else some

other person will give the same speech. In that situation, then,

the President speaks in an unofficial, private capacity.

Applying the executive branch’s longtime understanding: if a

sitting President running for re-election gives an acceptance

speech at the party’s convention, that presumably counts as

“[a]ppearing at [a] party function[]” and is unofficial activity

in the executive branch’s own view. Payment of Expenses, 6

Op. O.L.C. at 217 (citation omitted). But because an

acceptance speech at a party convention will also surely

address matters of public concern, President Trump’s proposed

approach would nonetheless grant a sitting President immunity

for it. A former President, though, would not get the same

favorable treatment for the same speech, nor would any other

candidate. President Trump’s approach thus would attach

official-act immunity to the “unofficial conduct of the

individual who happens to be the President.” Clinton, 520 U.S.

at 701.

Or take another example: a campaign ad fully funded by

a candidate’s campaign (her “authorized political committee”

in the words of campaign-finance law). See 52 U.S.C.

§ 30120(a)(1), (d)(1)(B). In the ad, the candidate discusses her

policy priorities—no doubt matters of public concern. And the

ad concludes with the legally mandated disclosure, “Paid for

and authorized by Jane Doe’s campaign,” followed by the

32

familiar voiceover, “I am Jane Doe, and I approve this

message.” Id. Under President Trump’s proposed public-

concern test, if the candidate happens to be the sitting President

(but not if she is a former President or any other candidate), her

speech in the ad would be official—even though it is plainly

campaign speech in a campaign ad given in her private capacity

as candidate. A sitting President then would be absolutely

immune from defamation liability for something she may have

said about her opponent in the campaign ad, whereas a former

President would face liability for saying the very same thing in

the very same ad.

The pro-incumbent imbalance would be especially stark if

the former and current Presidents were to run against each

other. In that situation, one candidate, the former President,

would face civil damages liability for statements on matters of

public concern in campaign ads or in an acceptance speech at a

party convention. But the competing candidate, the sitting

President, would be wholly insulated from damages liability

for making the very same statements on the opposing side of

the very same race. We see no basis for giving an incumbent

President that kind of asymmetrical advantage when running

against his predecessor.

That is not to say that, when an incumbent President

engages in campaign speech as a candidate, there is no

recognition of his current office. At the party convention, he

presumably would be introduced and referred to as the

President, as is natural. And relatedly, he may give the

acceptance speech at a podium affixed with the presidential

seal, as nominees of both major political parties have done

when speaking in their private capacities as candidates for re-

election. See, e.g., Mark Knoller, Presidential Seal Returns to

Obama Campaign Events After Change of Heart, CBS News

(July 6, 2012, 5:31 PM), https://www.cbsnews.com/news

33

/presidential-seal-returns-to-obama-campaign-events-after-

change-of-heart [https://perma.cc/533X-EVHE]; George W.

Bush 2004 Acceptance Speech, C-SPAN (Sept. 2, 2004),

https://www.c-span.org/video/?182731-2/george-w-bush-

2004-acceptance-speech [https://perma.cc/6Z26-TNBD].

But while the person giving the address is—and is

recognized to be—the sitting President, he still delivers the

address in his private, unofficial capacity as candidate for re-

election. It is analogous to the President appearing in a public

filing as the “President of the United States” but specifically

“in his personal capacity as candidate for re-election.” Trump

Mot. to Intervene 1 (capitalization altered). And when the

President speaks strictly in that capacity, there is no warrant for

granting him official-act immunity.

In short, a President’s speech on matters of public concern

can be an official act, as in the case of the State of the Union

address, or an unofficial act, as in the case of a speech at a re-

election campaign rally. For purposes of presidential

immunity, the key is whether the President is speaking (or

engaging in conduct) in an official capacity as office-holder or

instead in an unofficial capacity as officer-seeker. Whether the

speech relates to matters of public concern is beside the point.

Because President Trump believes that speech on matters

of public concern constitutes official presidential action as a

categorical matter, he makes no effort in this appeal to resist

the notion that he was acting in his capacity as a candidate

when engaged in the activity alleged in the complaints. In his

view, he is entitled to immunity regardless of whether “he was

acting as a candidate.” Trump Br. 18. Even if so, President

Trump submits, his relevant actions “[i]n the run-up to January

6th and on the day itself” amounted to speech on a matter of

public concern—i.e., the “integrity of the 2020 election”—and

34

so fell “well within the scope of ordinary presidential action”

entitled to immunity. Id. at 4.

As President Trump would have it, then, he engaged in

official presidential action for immunity purposes even when

he, by his own description, acted and spoke “in his personal

capacity as a candidate for re-election” rather than in his

“official capacity as President.” Trump Mot. to Intervene 14;

accord id. at 1, 3, 6, 19; compare Brief for the Petitioners at II,

Trump v. Hawaii, 138 S. Ct. 2392 (No. 17-965). After all, his

arguments in that filing addressed at length the same matter of

public concern he invokes in this appeal—the “integrity of the

2020 election.” Trump Br. 4; see Trump Mot. to Intervene 4–

5, 8–12, 15–17, 25–28, 37–38. But as the Supreme Court has

explained, there is “no support for an immunity for unofficial

conduct,” Clinton, 520 U.S. at 694, and hence no basis for

granting immunity for conduct (or speech) the President

himself contemporaneously recognizes he undertakes in his

personal, unofficial capacity as a candidate.

c.

Under Nixon and Clinton, then, the task is to distinguish

between official acts and private acts. In the context of the

cases before us, that means determining whether President

Trump acted as an office-holder or office-seeker when he

engaged in the activity alleged in the complaints.

In that regard, we recognize that “there is not always a

clear line between [the President’s] personal and official

affairs.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034

(2020). In particular, “the line between President and

candidate will not always be clear.” Trump Br. 18 (quoting

Thompson, 590 F. Supp. 3d at 80). But in some situations,

there will be little doubt, and not just when the President

himself allows that he acts “in his personal capacity as a

35

candidate for re-election.” Trump Mot. to Intervene 14. When

a sitting President solicits donations at a fundraiser for his re-

election campaign, fires a campaign pollster or hires a new one,

or gives a speech at a party convention accepting the party’s

nomination, it is straightforward to conclude that he acts in an

unofficial capacity as presidential candidate rather than an

official capacity as incumbent President.

Even if other contexts doubtless present closer calls, there

is ultimately no avoiding the essential understanding that a

President’s immunity from damages liability applies only to

“acts within the ‘outer perimeter’ of his official responsibility,”

Nixon, 457 U.S. at 756, and hence does not “extend[] beyond

the scope of any action taken in an official capacity,” Clinton,

520 U.S. at 694. The potential difficulty of meting out that

distinction in some situations, then, cannot justify simply

giving up on the enterprise altogether. And President Trump

himself allows that “courts can, in fact, tell the difference

between official and unofficial conduct.” Trump Reply Br. 14.

The inquiry, though, should be fashioned and carried out

with appropriate sensitivity to the important interests at stake.

In that connection, the Supreme Court has emphasized the need

to avoid “highly intrusive” inquiries “into the President’s

motives.” Nixon, 457 U.S. at 756. An assessment of whether

the President is engaged in official functions or unofficial re-

election campaign activity, correspondingly, does not turn on

whether the activity was subjectively undertaken in some

measure to enhance the President’s re-election prospects or

profile. The inquiry instead is an objective one, “grounded in”

a context-specific assessment of “the nature of the function

performed.” Clinton, 520 U.S. at 695 (internal quotation marks

and citation omitted).

36

We emphasize context because, only by looking to context

can the relevant nature of an action be understood. The same

essential message or act may be either official or unofficial

depending on the circumstances in which it is delivered or

performed. The President’s delivery of the State of the Union

address to Congress (and the public), for instance, is an official

act. See U.S. Const. art. II, § 3. That remains so regardless of

whether he may draw themes and make points with an eye on

maintaining his public standing in an election year, or whether

priorities given primacy in the speech may echo ones

emphasized on the campaign trail. Conversely, a speech at a

campaign rally fully funded by a President’s campaign

committee might relate some of the same messages as the State

of Union address, but is an unofficial event by nature.

Similarly, the President can remove the Secretary of State, and

he can remove his campaign manager. The former is an official

exercise of the executive power. See Nixon, 457 U.S. at 757;

Seila Law, 140 S. Ct. at 2197. But the latter is no such thing.

Understanding the context, then, will often be essential to

identifying the capacity in which a President acts.

That context may be substantially informed by the way in

which the President and the executive branch themselves treat

the activity in question. If it is clothed in the trappings of an

official function based on objective indicia, it more likely

constitutes an official act for immunity purposes than if it bears

the hallmarks of re-election campaign activity. So, if an

activity is organized and promoted by official White House

channels and government officials and funded with public

resources, it is more likely an official presidential undertaking

than if it is organized, promoted, and funded by campaign

channels, personnel, and resources. Cf. Payment of Expenses,

6 Op. O.L.C. at 215–17. Those considerations may not always

point in the same direction, or even be known, but they can be

illuminating when brought to light. The grant of immunity

37

aims to free the President from an inclination that may

otherwise exist to discharge his official functions in an unduly

cautious manner. Yet if the President’s (and executive

branch’s) own treatment of the matter exhibits that he views

himself to be engaged in private activity as a candidate, there

is no cognizable public interest in assuring he can carry out that

quintessentially unofficial function with boldness.

When an appropriately objective, context-specific

assessment yields no sufficiently clear answer in either

direction, the President, in our view, should be afforded

immunity. The “special nature of the President’s constitutional

office and functions” prompted the Nixon Court to extend

immunity to the “outer perimeter of his official responsibility.”

457 U.S. at 756 (internal quotation marks omitted). And

subsequent decisions have construed statutes not to constrain

presidential action absent clear indication of Congress’s intent

to do so. See Franklin v. Massachusetts, 505 U.S. 788, 800–

01 (1992); Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440,

465–67 (1989); cf. Application of 28 U.S.C. § 458 to

Presidential Appointments of Federal Judges, 19 Op. O.L.C.

350, 351–57 (1995). The same considerations counsel in favor

of construing the President’s actions to involve official

functions “so long as [they] can reasonably be understood” as

such. Hawaii, 138 S. Ct. at 2420. Conversely, though, when a

President’s actions viewed objectively and in context may

reasonably be understood only as re-election campaign

activity, a court not only may, but must deny immunity. By

doing so, the court “acts, not in derogation of the separation of

powers, but to maintain their proper balance.” Nixon, 457 U.S.

at 754.

We have no occasion to apply that framework in this

appeal because, as explained, President Trump makes no

argument at this stage that his actions as alleged in the

38

complaints were not re-election campaign activity. He will

have every opportunity to make such an argument in the

proceedings to come in the district court. See pp. 51–54, infra.

But the inquiry we have outlined is consistent with his

submission that the analysis should turn on “the function being

performed and not the politics or policy being advanced or the

words being used.” Trump Reply Br. 11. And the inquiry does

not consist of “[t]rying to identify speech that would benefit a

president politically.” Id. at 4.

That is not to say that the content of a speech will

invariably be entirely off-limits. In certain circumstances, for

instance, it could serve to confirm what an objective

assessment of the context makes evident. Indeed, even

“[d]eciding whether speech is of public or private concern”

under President Trump’s proposed approach would “require[]

us to examine the content, form, and context of that speech.”

Snyder, 562 U.S. at 453 (internal quotation marks and citation

omitted). But the crux of the inquiry we have described

concerns the context in which the President speaks, not what

precisely he says or whether it might advance his re-election

prospects.

By way of illustration, consider President Trump’s speech

at the “Salute to America” event on the National Mall on July

4, 2019. By the time of that address, President Trump had

formally announced his candidacy for re-election. Maggie

Haberman et al., Trump, at Rally in Florida, Kicks Off His 2020

Re-election Bid, N.Y. Times (June 18, 2019),

https://www.nytimes.com/2019/06/18/us/politics/donald-

trump-rally-orlando.html [https://perma.cc/A2GB-P96X].

And his address drew criticism in many quarters as amounting

to a taxpayer-funded campaign rally in service of his re-

election effort. See, e.g., Juliet Eilperin et al., Park Service

Diverts $2.5 Million in Fees for Trump’s Fourth of July

39

Extravaganza, Wash. Post (July 2, 2019, 9:39 PM), https://

www.washingtonpost.com/politics/white-house-gives-tickets-

to-trumps-july-fourth-extravaganza-to-gop-donors/2019/07/02

/9109a566-9ce0-11e9-b27f-ed2942f73d70_story.html [https://

perma.cc/48UL-HV9W]. But several objective considerations

strongly suggest that the speech was—and was treated by the

President and executive branch as—part of an official event,

regardless of whether what was said or how it was conceived

might have borne some subjective connection to enhancing

President Trump’s re-election prospects.

For instance, the Salute to America rally was publicly

funded, including through National Park Service and

Department of Defense resources. See id.; Kathryn Watson,

Pentagon Spent $1.2 Million for Trump’s July 4 “Salute to

America”, CBS News (July 10, 2019, 8:09 AM),

https://www.cbsnews.com/news/trumps-july-4-salute-to-

america-cost-military-1-2-million-pentagon-says/ [https://

perma.cc/87S6-ZWFT]. In addition, the government promoted

the event, and its primary organizers were government officials

from the White House and the Department of the Interior. See

Eilperin et al., supra. The National Park Service, for example,

“presented” the event and invited the public to attend. News

Release, Nat’l Park Serv., National Park Service Presents 2019

Independence Day Celebration in the Nation’s Capital (June

27, 2019), https://www.nps.gov/nama/learn/news/national-

park-service-presents-2019-independence-day-celebration-in-

the-nation-s-capital.htm [https://perma.cc/9B8B-S3P6].

Accordingly, the White House treated President Trump’s

speech as official presidential remarks on its official website

and, while President Trump was in office, dedicated a web page

to the annual Salute to America event. See Remarks by

President Trump at the 2019 Salute to America, The White

House (July 5, 2019), https://trumpwhitehouse.archives.gov

40

/briefings-statements/remarks-president-trump-salute-america

[https://perma.cc/YV6J-F82P]; Salute to America, The White

House, https://trumpwhitehouse.archives.gov/salutetoamerica

[https://perma.cc/GK67-JMLS] (last visited Nov. 18, 2023);

see also Trump White House Archived, Salute to America 2019

– Lincoln Memorial, YouTube (July 5, 2019),

https://www.youtube.com/watch?v=wgL0v9sJ0ZM

[https://perma.cc/9335-JGJG]. The White House also

promoted the event on its official Twitter account. See, e.g.,

@WhiteHouse45, Twitter (July 3, 2019, 6:01 PM), https://

twitter.com/WhiteHouse45/status/1146539367269359618

[https://perma.cc/3XJW-N7UZ]. And, finally, a number of

government officials attended the event (as was noted in the

President’s remarks, see Remarks by President Trump at the

2019 Salute to America, supra), some of whom could have

violated federal law by attending it if it were a campaign event,

see 5 U.S.C. § 7324.

We have no need here to definitively decide whether

President Trump’s remarks at the Salute to America event

would qualify as official presidential action for purposes of

presidential immunity. Additional considerations might affect

the assessment in some fashion. As one example, if the White

House’s official Twitter feed regularly promoted quintessential

campaign events, its promotion of the Salute to America rally

may not itself shed material light on the event’s official or

unofficial character in the eyes of the executive branch. But

under the inquiry we have outlined, President Trump’s speech

at the event would be treated as official action if it could

reasonably be understood in that way. Whether his remarks

addressed matters of public concern would not—and we

believe should not—decide the issue.

41

2.

We turn next to President Trump’s alternative argument

that he is entitled to official-act immunity because he took the

actions alleged in the complaints in an exercise of his Article II

duty to “take Care that the Laws be faithfully executed.” U.S.

Const. art. II, § 3. President Trump’s contention in that regard,

however, does not demonstrate that he was acting in his official

capacity so much as presume it. His argument presents no

ground for affording him immunity that is independent of his

ability to show that he engaged in the relevant actions in his

official capacity as President rather than in his private capacity

as presidential candidate.

The duty and authority to ensure the faithful execution of

the laws, as with all of the executive power, is vested in the

President solely in his official capacity. See U.S. Const. art. II,

§ 1, cl. 1. After all, the President assumes his Take Care Clause

responsibilities and other executive duties only upon taking the

constitutional oath of office, in which he must “solemnly swear

(or affirm)” that he “will faithfully execute the Office of

President of the United States.” Id. art. II, § 1, cl. 8 (emphasis

added). Nothing in Article II contemplates the President’s

exercise of the powers of the presidency when acting in a

private—i.e., non-presidential—capacity. Rather, President

Trump’s assertion that he exercised his authority under the

Take Care Clause, at least without more, assumes the answer

to the question whether he acted in an official capacity as

office-holder or in a private capacity as office-seeker. If he

acted in the latter capacity, he cannot have been exercising the

duties of the very office he was seeking to attain—any more

than could his challengers when taking the same kinds of

actions in seeking to attain the same office.

42

It is not that President Trump could not establish his

entitlement to immunity by demonstrating that he acted

pursuant to the Take Care Clause; it is that he has not done so.

He asserts that he was attempting to ensure faithful execution

of the laws—in particular, the Electoral Count Act—but he has

not explained why his actions should count as official other

than to say they fit within the ambit of his Take Care Clause

duties. They might, or they might not, depending on the

context in which he acted. The President could exhort

Congress to do its duty under the Electoral Count Act in a

campaign ad, or he could do the same in the State of the Union

address. Even assuming (without deciding) that the latter

would be an action taken in furtherance of the President’s Take

Care Clause duties, the former would not be—and indeed could

not be, given that, as explained, the Take Care Clause

presupposes official rather than private action. President

Trump, though, has made no argument as to why his actions

alleged here should be treated more like the State of the Union

than the campaign ad. His invocation of the Take Care Clause

thus ultimately does not add anything to his claim of immunity

in the circumstances of the cases before us.

C.

Whereas President Trump propounds a theory of immunity

that, in application, could confer immunity even if he acted in

an unofficial capacity as presidential candidate, the plaintiffs’

theory presents the opposite shortcoming: it could deny a

President immunity even if he acted in his official capacity as

sitting President. The government’s proposed approach

ultimately shares that same deficiency. We thus decline to

adopt either the plaintiffs’ or government’s proposed rationales

for rejecting President Trump’s claim of immunity.

43

1.

The plaintiffs argue that a President’s official

responsibilities “do not include engaging in campaign

activity.” Plaintiffs’ Br. 33. That reasoning, consistent with

the approach we have outlined, focuses on whether the

President acted in his official capacity as incumbent office-

holder or instead engaged in campaign activity in his private

capacity as office-seeker. To that extent, we agree with the

plaintiffs’ understanding of the pertinent inquiry in the cases

before us.

But the plaintiffs also go further. In their view, President

Trump’s actions were not official activity—and thus are not

imbued with immunity—because they obstructed a

constitutional process in which his office had no role, thereby

infringing on the separation of powers. The plaintiffs maintain

that the Constitution intentionally excludes the President from

the formal process of counting electoral votes, assigning that

function instead to Congress and the Vice President in his

capacity as the President of the Senate. See U.S. Const. art. II,

§ 1, cl. 3–4; id. amend. XII. President Trump’s alleged efforts

to interfere in that process, the plaintiffs assert, thus necessarily

fell beyond the outer perimeter of his official presidential

duties, and indeed undermined the democratic legitimacy of the

presidency. As a result, the plaintiffs urge, President Trump’s

claim of immunity must be denied.

That argument, in our view, cannot carry the day. Nixon’s

outer-perimeter test, as we have explained, does not confine the

President’s official-act immunity to actions the Constitution

expressly authorizes him to take. See pp. 20–21, 24, supra. We

do not doubt, for instance, that the President can act in an

official capacity when commenting on state legislation, on a

judicial decision, or on Congress’s internal procedures, even

44

though those matters may lie beyond the President’s own

enumerated job duties. To be sure, if the President speaks

about those subjects at a re-election campaign rally, he does so

in an unofficial capacity. But that is because he acts in his

private capacity as a presidential candidate, not because he

engages with matters falling outside his enumerated executive

responsibilities.

Here, insofar as the plaintiffs’ argument rests on the notion

that President Trump’s alleged actions infringed the separation

of powers, their reasoning tends on balance to support granting

immunity more than it does withholding it. The plaintiffs

assert that President Trump “disrupted the constitutionally

mandated separation of powers by invading a coordinate

branch of government [i.e., Congress] as it carried out its own

constitutional duties” to count the votes of the Electoral

College. Plaintiffs’ Br. 28. That kind of “executive branch

interference,” to the plaintiffs, id. at 33, works a “blatant

violation of the constitutional separation of powers that

‘restrains each of the three branches of the Federal Government

from encroaching on the domain of the other two,’” id. at 29–

30 (quoting Clinton, 520 U.S. at 691).

In conceiving of President Trump’s actions as an effort by

one branch to interfere in another branch’s sphere, however,

the plaintiffs’ argument presupposes that President Trump

acted in an official capacity. He could effect an executive

branch incursion on a coordinate branch only if he were acting

in his capacity as the executive branch’s chief officer—i.e., in

his official capacity as President. Put in the alternative, he

could not work an executive branch intrusion on another

branch’s domain if he were acting in an unofficial, private

capacity: in that event, he would be acting as a private person

lacking any authority over the executive branch, not as the

branch’s chief officer. In short, the President acts in an official

45

capacity cloaked with the protections of immunity when he

allegedly perpetrates an infringement of the separation of

powers, but he lacks any such ability to violate the separation

of powers when acting in the kind of private, unofficial

capacity for which immunity is unavailable.

By way of illustration, consider “[p]erhaps the most

dramatic example” of a President found to have exceeded the

executive branch’s authority in a manner encroaching on

Congress’s domain. Clinton, 520 U.S. at 703 (discussing

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952)). Youngstown Sheet & Tube Co. v. Sawyer involved a

challenge to President Truman’s executive order directing the

Secretary of Commerce to seize and operate the nation’s steel

mills at the height of the Korean War. 343 U.S. at 582. The

Supreme Court rejected that assertion of presidential power,

holding that “[t]he Founders of this Nation entrusted the

lawmaking power to the Congress alone in both good and bad

times.” Id. at 589; cf. id. at 635–37 (Jackson, J., concurring).

But while President Truman was found to have gone

beyond the limits of his branch’s authority into the province of

a coordinate branch, he did so in an exercise of official

responsibility, as to which immunity from civil damages

liability would attach. Indeed, the Supreme Court, in the

course of later denying immunity to President Clinton,

described President Truman’s challenged order in Youngstown

as an example of “when the President takes official action.”

Clinton, 520 U.S. at 703. So, whereas the Supreme Court

would treat President Truman’s act as official even though it

encroached on a coordinate branch’s domain, the plaintiffs’

approach would treat it as unofficial—and, it follows,

unprotected by official-act immunity in a civil damages suit.

46

The plaintiffs might perceive Youngstown as different

from this case on a theory that President Trump affirmatively

obstructed Congress, something President Truman did not do.

But the Youngstown framework treats all presidential action

interfering with the “expressed or implied will of Congress” the

same—i.e., as falling at the “lowest ebb” of a President’s

authority, but still fully eligible for treatment as official action

for purposes of presidential immunity. See Zivotofsky v. Kerry,

576 U.S. 1, 10 (2015) (quoting Youngstown, 343 U.S. at 637

(Jackson, J., concurring)). And we see no reliable,

administrable criteria for predictably identifying when

presidential action might amount to obstruction of a coordinate

branch as opposed to something less. That is particularly so

when, as here, the extent to which a President’s challenged

actions ultimately interfere with a coordinate branch depends

on how third parties respond to the President. Insofar as those

kinds of third-party reactions may be difficult to predict—as

could well be the case in the charged contexts in which

presidential immunity can be in issue—a President might

hesitate to act with the conviction and dispatch that official-act

immunity aims to secure. See Nixon, 457 U.S. at 752–53.

Under the plaintiffs’ theory, moreover, the availability of

presidential official-act immunity would turn on the legality of

the President’s actions—specifically, on whether the actions

flouted the separation of powers by intruding on a coordinate

branch. But Nixon forecloses a legality-centered approach of

that sort. Recall that the Supreme Court rejected the suggestion

that, because President Nixon had unlawfully discharged

Fitzgerald without adequate cause, he had necessarily acted

beyond the outer perimeter of his official functions. Nixon, 457

U.S. at 756. Withholding immunity on that basis, the Court

explained, “would subject the President to trial on virtually

every allegation that an action was unlawful,” which in turn

“would deprive absolute immunity of its intended effect.” Id.

47

Those concerns apply to an alleged violation of the

separation of powers no less than to any other alleged violation

of law. In fact, the more uncertain the lawfulness of

prospective official action, the more pronounced the need for

(and effect of) granting official-act immunity. On that register,

immunity for separation-of-powers violations rates quite high,

for “the lines between the powers of the three branches are not

always neatly defined.” Clinton, 520 U.S. at 701. For that

reason as well, we are unmoved by the plaintiffs’ argument for

a denial of immunity based on President Trump’s ostensible

infringement of the separation of powers.

2.

Like the plaintiffs, the government puts forward an

argument for affirming the denial of immunity to President

Trump that does not adequately correlate with whether he took

the actions alleged in the complaints in his official capacity as

President or in his private capacity as presidential candidate.

In fact, the central object of the government’s proposed

approach is to avoid the need to apply that distinction. See

Gov’t. Br. 16, 22. We appreciate the government’s submission

of its views in response to our invitation to share the executive

branch’s perspective on the proper resolution of this appeal, but

we decline to adopt the government’s suggested approach.

The government’s proposed approach is highly fact-

specific, turning on the particular grounds advanced (and not

advanced) by President Trump on appeal. The government

seizes on President Trump’s argument that speech on matters

of public concern, as a categorical matter, is an official

presidential function. That argument, the government reasons,

assumes that a President would be afforded immunity even if

his speech amounts to incitement of imminent private violence.

The government proposes that we reject President Trump’s

48

argument for immunity by exploiting that assumption, because,

in the government’s view, incitement of imminent private

violence by definition lies outside a President’s official

functions. And the government suggests that we simply

assume that President Trump’s conduct fits within that

category of ostensibly non-immune activity, the boundaries of

which the government would define by reference to First

Amendment standards marking unprotected incitement as set

out in Brandenburg v. Ohio, 395 U.S. 444 (1969).

As an initial matter, the government’s suggested approach

could lead to our denying immunity to President Trump based

on an assumption that turns out to be false—indeed, an

assumption that President Trump has already contested. The

government asks us to assume for purposes of this appeal (but

not actually decide) that President Trump’s speech on January

6 and in the leadup to that day falls outside the First

Amendment’s protections because it amounts to incitement of

imminent lawless action under Brandenburg. We could so

assume only because that First Amendment question is not

presently before us, since President Trump opted not to seek

appellate review on the issue at this time. See 28 U.S.C.

§ 1292(b). If his First Amendment claim were before us, we

would need to engage it on the merits rather than assume its

rejection. The issue, though, remains in the case and could

come before us at a later stage. So if we were to accept the

government’s suggested approach, we might resolve the

question of President Trump’s immunity based on an assumed

answer to his First Amendment claim that perhaps could—

depending on its ultimate resolution, the merits of which we do

not now assess in any way—fail to stand up in the end.

As for the substantive merits of the government’s

proposed approach, it aligns the scope of a President’s official-

act immunity with the scope of protected speech under the First

49

Amendment. There is no evident precedent for that kind of

approach, and the fit seems an uneasy one. The considerations

that inform whether a President is engaged in the discharge of

official duties—the relevant question for purposes of

presidential immunity—bear no necessary relation to the

considerations that inform whether a President’s speech would

fall within the First Amendment’s protections. The two

inquiries serve distinct purposes, and in some sense appear to

work at cross purposes. At a high level, the President is

immune when he acts in his official capacity—i.e., as the

government rather than as a private person—whereas the First

Amendment protects private persons against restraints imposed

by the government. It is unclear why the existence of official-

act immunity’s protections for acting as the government should

turn on the existence of First Amendment protections against

the government.

In operation, the government’s proposed approach would

tend to confer presidential immunity when it is least needed

while withholding it when it is most needed. As to the former,

if the President’s speech falls within the First Amendment’s

protections, the government’s approach would preserve

presidential immunity. But if the First Amendment protects the

President’s speech, that protection would foreclose the

possibility of civil damages based on the speech regardless of

presidential immunity. See, e.g., Hustler Magazine, Inc. v.

Falwell, 485 U.S. 46, 55–56 (1988). In that situation, then, the

President would have little need for the protection that official-

act immunity would afford.

Conversely, if the President’s speech falls outside the First

Amendment’s protections because it amounts to incitement,

the government’s proposed approach would leave the President

without official-act immunity even if it otherwise seems

apparent that the speech was delivered in an official capacity—

50

e.g., in the State of the Union address. And while the

government specifically focuses on incitement, there are other

types of unprotected speech, too, such as defamation. See

United States v. Stevens, 559 U.S. 460, 468–69 (2010). We see

no conceptual basis for confining a theory that would render

immunity unavailable when the First Amendment is

unavailable to one type of unprotected speech alone. So, the

President would be denied immunity not just for incitement,

but also for defamation (or other types of unprotected

expression). And when the President engages in speech

amounting to incitement or defamation, he not only removes

himself from the First Amendment’s protections, but he also

subjects himself to the prospect of damages suits—the situation

in which official-act immunity is salient. E.g., Milkovich v.

Lorain J. Co., 497 U.S. 1, 11 (1990) (civil action for

defamation); cf. Falwell, 485 U.S. at 56 (intentional infliction

of emotional distress); see also Blassingame Compl. ¶¶ 180–

89, J.A. 59–60 (inciting to riot); Swalwell Compl. ¶¶ 192–200,

208–20, J.A. 120–22, 123–26. (inciting to riot and inciting

assault).

The government would accept that result because it

considers incitement (and presumably other categories of

similarly unprotected speech) to be categorically unofficial.

But it is possible that a President, in exhorting the public to

action on a cause considered essential or in responding to a

reporter’s question at a White House press briefing about

criticism directed at the President, might speak in a manner

testing the potentially indistinct lines dividing protected from

unprotected speech: “incitement to disorder,” the Supreme

Court recently observed, “is commonly a hair’s-breadth away

from political ‘advocacy.’” Counterman v. Colorado, 143 S.

Ct. 2106, 2118 (2023) (quoting Brandenburg, 395 U.S. at 447);

see also NAACP v. Claiborne Hardware Co., 458 U.S. 886,

927 (1982); cf. Jones v. Clinton, 72 F.3d 1354, 1359 n.7 (8th

51

Cir. 1996), aff’d on other grounds, 520 U.S. 681 (1997)

(alleging defamation “by Mr. Clinton’s presidential press

secretary while Mr. Clinton was President”).

The government’s suggested approach would deny

official-act immunity if a President’s borderline speech falls on

the wrong side of that potentially elusive divide. But immunity

cannot serve its intended purpose if it is withheld when a

President would need it most—i.e., when a President might

refrain from undertaking some course of official action because

of uncertainty about whether it could give rise to damages

liability. To that end, Nixon, as explained, rejected as unduly

constraining the proposition that a President’s official-act

immunity is coextensive with the legality of his actions. See

457 U.S. at 756. Yet that would be the upshot of an approach

that would deny immunity if the President’s speech falls

beyond the First Amendment’s protections.

All told, we see no sound basis for categorically excluding

unprotected speech from the protections of presidential

official-act immunity—and little affirmative reason for doing

so. We therefore decline to accept the government’s proposed

approach.

III.

While we affirm the district court’s denial of President

Trump’s claim of official-act immunity at the current stage of

the proceedings, that does not mean the proceedings now

instantly move ahead to engage with the merits of the plaintiffs’

claims. President Trump moved to dismiss the claims against

him on grounds of official-act immunity based on the

allegations in the complaints, and at the motion-to-dismiss

stage, those allegations are assumed to be true. He thus has had

no opportunity to dispute the plaintiffs’ allegations bearing on

the immunity question or to introduce his own facts pertaining

52

to the issue. He must be afforded that opportunity before the

proceedings can move ahead to the merits, including before any

merits-related discovery.

Official immunity, including the President’s official-act

immunity, is “immunity from suit rather than a mere defense to

liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). It is

“an entitlement not to stand trial or face the other burdens of

litigation.” Id. And as we have made clear, “[d]iscovery is

itself one of the burdens from which defendants are sheltered”

by official immunity. Martin, 812 F.2d at 1430 (collecting

cases). The importance of shielding officials from the burden

of unwarranted discovery is among the reasons the Supreme

Court has “repeatedly . . . stressed the importance of resolving

immunity questions at the earliest possible stage in litigation.”

Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting

Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).

Those concerns are particularly pronounced when the official

claiming immunity from suit is the President. See generally

Nixon, 457 U.S. at 749–53.

While President Trump therefore must be afforded an

opportunity to resolve his immunity claim before merits

discovery, discovery bearing on the immunity question itself

might be in order if the circumstances warrant it. The Supreme

Court has recognized that discovery “tailored specifically to the

question of” immunity may be merited when there is a need to

develop facts or resolve factual disputes to facilitate deciding a

threshold question of immunity. Anderson v. Creighton, 483

U.S. 635, 646–47 n.6 (1987). President Trump may of course

move for summary judgment on his immunity claim, and the

district court may rule on any such motion once the factual

record on the issue is sufficiently developed. Cf. Kartseva v.

Dep’t of State, 37 F.3d 1524, 1530 n.21 (D.C. Cir. 1994)

(“[W]here the parties present a factual dispute about the

53

challenged conduct, and the merits of the qualified immunity

question turn on that dispute, ‘discovery may be necessary

before [a] motion for summary judgment on qualified

immunity grounds can be resolved.’” (second alteration in

original) (quoting Anderson, 483 U.S. at 646–47 n.6)).

At the summary-judgment stage—and throughout—

President Trump bears the burden of establishing that he is

entitled to official-act immunity. As a general matter, “[t]he

burden of justifying absolute immunity rests on the official

asserting the claim.” Harlow v. Fitzgerald, 457 U.S. 800, 812

(1982); accord Banneker, 798 F.3d at 1140. There is no

evident reason to apply any different approach in the context of

presidential immunity. In Nixon, the Supreme Court

characterized a President’s official-act immunity as a

“defense” that President Nixon had “claimed,” 457 U.S. at 741,

and the Court nowhere suggested the need for any President-

specific exception to the “general rule” that a defendant must

“plead and prove . . . a defense,” Taylor v. Sturgell, 553 U.S.

880, 907 (2008). Accordingly, in Jones v. Clinton, the court of

appeals held that President Clinton bore the burden of

establishing his entitlement to presidential immunity, 72 F.3d

at 1361, a conclusion the Supreme Court did not address or

revisit in its decision in the case.

Although President Trump must demonstrate his

entitlement to immunity, that burden will be met if, based on

an appropriately objective, context-specific assessment, his

alleged actions can reasonably be understood as the official

actions of an office-holder rather than the unofficial actions of

an office-seeker. See pp. 34–37, supra. In other words, is it

reasonable to think he was exercising his official

responsibilities as President, or was he instead engaging in re-

election campaign activity as a presidential candidate? The

complaints contain factual allegations potentially bearing on

54

the issue—for instance, that the January 6 rally was “organized

in part by Trump’s former campaign staff” and “arranged and

funded by a small group including a top Trump campaign

fundraiser and donor,” Blassingame Compl. ¶ 59, J.A. 38

(quotation marks and citation omitted), or “was organized and

funded by Trump’s campaign organization,” Swalwell Compl.

¶ 97, J.A. 98. President Trump appears to deny those accounts

as a factual matter, having asserted in the district court that “the

January 6th rally is in no way related to the campaign; . . . the

campaign doesn’t pay [] for it; the campaign is not involved

with it at all.” J.A. 327.

Those sorts of considerations and others would inform the

assessment and ultimate resolution of President Trump’s claim

of official-act immunity in the proceedings to come in the

district court, insofar as he continues to press that defense. As

for the appeal presently before us, we affirm the district court’s

denial of President Trump’s motion to dismiss on grounds of

presidential immunity, and we leave it to that court to conduct

further proceedings on the issue as desired and warranted.

* * * * *

For the foregoing reasons, we affirm the district court’s

denial of President Trump’s motion to dismiss the claims

against him on grounds of presidential immunity.

So ordered.

KATSAS, Circuit Judge, concurring: This appeal presents

the question whether President Trump is entitled to immunity

from damages claims based on his speech outside the White

House on January 6, 2021. Under Nixon v. Fitzgerald, 457

U.S. 731 (1982), the President is immune from damages claims

based on his official acts. But under Clinton v. Jones, 520 U.S.

681 (1997), the President is not immune from claims based on

private, unofficial acts. The immunity question thus turns on

whether President Trump made the January 6 speech in an

official or private capacity.

Today, we do not definitively resolve that question.

Instead, we hold only that we cannot resolve it on a motion to

dismiss. Our conclusion rests on two propositions persuasively

established by Chief Judge Srinivasan’s lead opinion. First, in

certain limited contexts, courts may reliably conclude that a

sitting President is speaking only in a private capacity as a

candidate for re-election or as the leader of a political party.

These include instances where the President speaks at a party

convention, in a presidential debate, in a political

advertisement, at a campaign rally, or at a party fundraiser.

Second, the operative complaints plausibly allege that the

January 6 speech involved this kind of purely private campaign

speech. In particular, the complaints allege that the January 6

rally was organized by campaign staff and funded by private

donors, and was neither facilitated by White House staff nor

paid for with congressionally appropriated funds. Given those

allegations, which remain to be tested on summary judgment

or at trial, we cannot resolve the immunity question in

President Trump’s favor at this stage of the case.

Although we do not definitively resolve the immunity

question, we do set forth the legal framework for assessing it.

Given the immunity’s importance, I offer a few thoughts

elaborating on the Court’s handiwork.

2

The parties present us with stark, categorical alternatives.

President Trump’s primary contention is that whenever a

sitting President speaks on a matter of public concern, the

speech is official enough for immunity to attach. The plaintiffs

respond that immunity can attach only to speech made in

furtherance of a presidential power specifically enumerated in

Article II of the Constitution. The Court rightly rejects both

positions.

As to the latter, Presidents routinely speak in an official

capacity even when not directly exercising any enumerated

power. Decades if not centuries of tradition establish that the

President may use the soft power of his office—the bully

pulpit—to urge action by Congress, the judiciary, the states, or

private parties on matters of public concern. Ante, at 20–21,

24, 43–44. For example, the political branches have no official

role in deciding cases or controversies, U.S. Const. Art. III, yet

Presidents often comment officially—in White House press

conferences or even State of the Union addresses—about past

or prospective Supreme Court decisions. The federal

government has no official role in deciding whether guns

should be permitted near schools. United States v. Lopez, 514

U.S. 549 (1995). Yet a President could, in his official capacity,

seek to cajole state officials one way or the other on that issue.

Likewise, as the government explains in this case, “a President

acts within the scope of his office when he urges Members of

Congress to act in a particular way with respect to a given

legislative matter—even a matter, such as a congressional

investigation, in which the President has no constitutional

role.” Brief for United States as Amicus Curiae at 11,

Blassingame v. Trump, No. 22-5069 (D.C. Cir. March 2, 2023);

see also id. at 12 (“the President can and must engage with the

public on matters of public concern”).

3

As to the former, the President does not always act in an

official capacity when he speaks on matters of public concern.

To take a few trivial examples, the President acts unofficially

when he speaks with a first cousin, an old college friend, a

business associate, or the teachers of his school-age children—

even if they happen to discuss matters of public concern. And

as relevant here, the President acts unofficially when he speaks

as a candidate. Immunity attaches to functions of presidential

action, not to the individual occupying the Office of the

President. See Clinton v. Jones, 520 U.S. at 694–95.

How, then, to distinguish official from private presidential

speech on matters of public concern? The Court stresses an

“objective” inquiry into the “context” of the speech,

“substantially informed” by whether it is “clothed in the

trappings of an official function”—i.e., whether it is “organized

and promoted by official White House channels” and “funded

with public resources.” Ante, at 35–37. In some instances, this

inquiry will yield clear answers: Campaign or other political

events are unofficial; White House staff may not work on them,

and congressionally appropriated funds may not support them.

See, e.g., Payment of Expenses Associated with Travel by the

President and Vice President, 6 Op. O.L.C. 214 (1982).

Accordingly, when the President speaks at campaign events—

whether in political conventions, debates, advertisements,

rallies, or fundraisers—he normally does so in a private

capacity, as a candidate for re-election or as the leader of his

party. On the other hand, many other kinds of presidential

speech are obviously official—for instance, the State of the

Union address, a formal address from the Oval Office, or a

press conference from the White House Press Briefing Room.

As the Court makes clear, this inquiry in no way turns on

the President’s motive for the speech at issue. In particular, the

inquiry does not turn on the extent to which a speech reflects

4

the President’s views of good politics as opposed to good

policy. Ante, at 35. As a general matter, motive-based

inquiries are “highly intrusive” and thus inappropriate for

scoping out immunity, even in cases involving plausible

allegations that the President has acted for some

unconstitutional purpose. See Nixon v. Fitzgerald, 457 U.S. at

756. Moreover, a motive-based inquiry would be even more

unsound to separate official presidential action from the

unofficial actions of a mere candidate for re-election.

Presidents routinely take political considerations into account

in their official acts, which is the intended goal of a

Constitution establishing the presidency as an elected and thus

democratically accountable office.

Nor should the immunity turn on how political the speech

appears on its face. A State of the Union address does not

become unofficial if it contains base partisan jabs in addition

to august policy proposals. And a President’s acceptance

speech at a party nominating convention does not become

official if it contains august policy proposals in addition to base

partisan jabs. Because the President may deliver the “same

essential message” at an official or unofficial event, the

immunity cannot turn on what he says. Ante, at 36. Thus, while

the content of a speech may “serve to confirm what an objective

assessment of the context makes evident,” id. at 38, it cannot

substitute for that assessment. In other words, if a presidential

speech is “clothed in the trappings of an official function,” id.

at 36, it almost certainly warrants the protection of official

immunity.

The Court’s approach recognizes that presidential speech

on matters of public concern will very often be official—and

thus immunized. To begin with, the President is always on-

duty: He “alone composes a branch of government.” Trump

v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020). Vested

5

with the entire “executive Power” of the United States, U.S.

Const. Art. II, § 1, cl. 1, he must “take Care that the Laws be

faithfully executed,” id. § 3, cl. 1, and must supervise over four

million subordinates in the process, see Seila Law LLC v.

CFPB, 140 S. Ct. 2183, 2191 (2020). Absent a disability

established by formal executive action under the Twenty-Fifth

Amendment, he must always remain “ready, at a moment’s

notice, to do whatever it takes to preserve, protect, and defend

the Constitution and the American people.” Amar & Katyal,

Executive Privileges and Immunities: The Nixon and Clinton

Cases, 108 Harv. L. Rev. 701, 713 (1995). Unless speaking at

some specific campaign or political event, he will thus likely

be “clothed in the trappings” of his Office—whether in the

West Wing, in the Executive Residence, on Air Force One, at

Camp David, at his own private residence, visiting foreign

dignitaries, or even on a working vacation. In these contexts,

his speech on matters of public concern will likely be official.

(I do not address here the distinct question whether the

President in these settings may choose to speak on public

matters in a purely private capacity. Cf. Knight First Amend.

Inst. v. Trump, 928 F.3d 226 (2d Cir. 2019), vacated as moot

sub nom. Biden v. Knight First Amend. Inst., 141 S. Ct. 1220

(2021).) And critically, if it is unclear whether the presidential

speech is official, the Court appropriately preserves the

immunity. Ante, at 37.

One final point: The President’s official duties are so

pervasive that he may occasionally render official speech even

during a typical campaign event. Imagine, for instance, that the

President uses such an event to remove his Secretary of State.

That would surely be an official act, ante, at 36, which could

not serve as the basis for a wrongful-termination lawsuit.

Likewise, any accompanying explanation of the removal, given

its close connection to the official act, would likely count as

official speech. Thus, it likely could not serve as the basis for

6

a defamation lawsuit. Or recall the iconic image of President

Bush reading a book to schoolchildren on September 11, 2001,

when an aide whispered to him that America was under attack.

Had that event been a political rather than an official event, and

had the President immediately responded with an off-the-cuff

statement to rally or console the Nation, I have little doubt that

the response would have been official. Despite the Court’s

emphasis on the formal “trappings” of an event, id., its

contextual approach does not foreclose consideration of the

constitutional and practical imperative that the President must

be able to engage in official business on a moment’s notice,

even when speaking at campaign events.

In sum, the Court’s approach is well-tailored to identify

campaign speech that can reasonably be viewed only as

unofficial. It does not threaten to strip immunity from other

kinds of presidential speech. It is flexible enough to

accommodate rare cases where even speech made during a

campaign event may be official. And it is cautious, in leaving

open both the question whether the speech at issue is entitled

to immunity and, if not, whether the First Amendment

nonetheless protects it.

ROGERS, Circuit Judge, concurring in part. The issue

before the court on interlocutory review is whether the district

court erred when it partially denied President Trump’s motion

to dismiss pending civil claims on the basis of absolute

immunity.

The Supreme Court has twice addressed the scope of

absolute presidential immunity in the context of suits for civil

damages. In Nixon v. Fitzgerald, 457 U.S. 731 (1982), the

Court held that President Nixon was absolutely immune from

civil damages claims arising from his reorganization of the

Department of the Air Force and the plaintiff’s resultant job

loss during Nixon’s presidency. In Clinton v. Jones, 520 U.S.

681 (1997), the Court held that absolute presidential immunity

did not apply against suits for civil damages arising from a

transaction or occurrence before the start of a President’s

tenure. Although the facts are distinct from the instant case,

both decisions emphasize that the President has absolute

immunity from civil damages suits that arise from his execution

of official presidential duties. See Nixon, 457 U.S. at 749, 754;

Clinton, 520 U.S. at 693-95.

I concur in the court’s substantive legal analysis of the sole

issue before the court. Op. Pts. I, II.A, II.B.1.a-b & B.2.

Because the remainder of the opinion is premature and

unenforceable dictum, I do not join it. Op. Pts. II.B.1.c, II.C,

& III; see Concurring Op. of Judge Katsas.

I.

President Trump seeks reversal of the denial of his

absolute immunity defense because his pre–January 6th speech

on Twitter, his January 6th rally speech, and his failure to act

promptly once the Capitol was breached fall into two discrete

presidential “functions” and therefore were undertaken in his

2

official capacity: (1) speaking on matters of public concern and

(2) the constitutional duty to “take Care that the Laws be

faithfully executed,” U.S. CONST. art. II, § 3. On appeal, he

does not dispute that at these times he was acting as a candidate

for reelection. See Appellant’s Br. at 8-10. Both contentions

are unpersuasive.

A defendant who seeks to assert absolute immunity bears

the burden of showing that it applies. Banneker Ventures, LLC

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

not explicitly assigning the burden of proof, the Supreme Court

has acknowledged that a President “asserts his immunity.”

See Nixon, 457 U.S. at 748. This court thus applies Banneker,

an in-circuit guide for absolute immunity determinations. Cf.

Op. at 12.

A.

President Trump principally contends that “the expansive

immunity to which [he] is entitled,” Appellant’s Br. at 11,

applies “whenever and wherever a President speaks on a matter

of public concern,” id. (quoting Dist. Ct. Op. at 33). Although

the President’s absolute immunity from suit extends to actions

falling within the “outer perimeter” of official duty, Nixon, 457

U.S. at 757, “the sphere of protected action must be related

closely to the immunity’s justifying purposes,” id. at 755; see

Clinton, 520 U.S. at 694. The main rationale for absolute

immunity is that the President’s duties distinguish the role of

President from that of other executive officials. The immunity

afforded is “a functionally mandated incident of the President’s

unique office” because the “diversion of [the President’s]

energies by concern with private lawsuits would raise unique

risks to the effective functioning of government.” Nixon, 457

U.S. at 749, 751. Given that rationale, absolute immunity

applies to claims for civil damages against the President for

3

official acts — not to criminal acts or acts taken in a personal

capacity. See id. at 749, 754; Clinton, 520 U.S. at 693-95.

Speech on matters of public concern is unquestionably a

function of the presidency. Yet the critical question is whether

all speech on matters of public concern, regardless of

substance, context, or consequence, must be considered an

official duty, or at least on the outer perimeter thereof. As the

court explains, Op. Pts. II.B.1.a-b, the fact that speech touches

on a matter of public concern, and that the President is the

speaker, does not automatically render that speech part of a

“designated function[],” Clinton, 520 U.S. at 693, or part of the

“discharge of [the President’s] official duties” — an essential

aspect of the logic of attaching immunity, Nixon, 457 U.S. at

752 n.32. The Supreme Court’s admonition that the sphere of

action protected by absolute immunity must be closely tied to

the immunity’s justifying purposes, see Nixon, 457 U.S. at 755,

forecloses President Trump’s expansive interpretation of

speech on matters of public concern. It cannot be that anytime

the President speaks in a way that touches on a matter of public

concern, absolute immunity from suit attaches. Op. at 27. The

content and context of that speech matters. Id. at 33. President

Trump maintains that denying absolute immunity would be

“terribly damaging” to the Executive Branch and would

undercut the President’s ability to freely discuss congressional

and judicial action. Appellant’s Br. at 22. But refusing to

attach absolute immunity to speech that is clearly outside the

bounds of official duty — e.g., ordering armed protestors to a

Supreme Court Justice’s house, slandering a political opponent,

or inciting violence — discourages only that speech, not all

speech concerning the topics.

So understood, President Trump’s January 6th speech on

Twitter leading up to the rally and his speech at the rally

implicated important matters of public concern, including the

4

outcome of the 2020 presidential election and election integrity

generally. Yet because not all speech on matters of public

concern serves an official function, the district court correctly

inquired into what purpose that speech was serving: was

President Trump engaged in the performance of an official act,

or was he carrying out some other function outside the scope of

official duty? See Dist. Ct. Op. at 33. That determination, as

the court emphasizes, requires a close look at the specific acts

alleged to determine whether they were performed in the course

of furthering an official presidential function. Op. Pt. II.B.1.b.

The Supreme Court’s reasoning supports a functional analysis,

see Clinton, 520 U.S. at 692-93, as does this court’s treatment

of absolute immunity in Banneker, 798 F.3d at 1140. In

Banneker, the court focused on the “relationship between ‘the

act complained of’ and the corresponding ‘matters committed

by law to [the official’s] control or supervision.’” Id. at 1141

(quoting Barr v. Matteo, 360 U.S. 564, 573 (1959)). See also

Dist. Ct. Op. at 36.

Although the line between President and candidate may

not always be clear, President Trump’s alleged words and

actions were directed toward promoting his victory in the 2020

presidential election rather than carrying out a designated

official duty to confirm the integrity of the electoral process, to

ensure the faithful execution of the laws, or to fulfill other

official purposes. See Op. at 4-5; Dist. Ct. Op. at 38. In

conducting a functional analysis based on the record, the

district court could properly find that President Trump’s

criticism of state officials and promotion of the January 6th

“Save America” rally were not, viewed in context, in

furtherance of an official presidential function, but rather were

acts directed at securing his reelection. See Dist. Ct. Op. at 37-

39. So too President Trump’s filing of lawsuits contesting the

election and his rally speech itself. See Op. at 4-5, 9, 10-12;

Dist. Ct. Op. at 38-40. At no point before, during, or

5

immediately after January 6th did President Trump identify a

constitutional or statutory provision in accordance with which

he was purporting to exercise an officially designated

presidential duty. Under the circumstances, it is unnecessary

to inquire into the President’s motives in order to conclude that

his actions did not constitute an official function of his office.

See Nixon, 457 U.S. at 756-57.

In some instances, a functional analysis approach to

absolute immunity may involve difficult questions and require

close judicial calls. Not so at this stage of the proceedings. See

Op. at 6. To permit the application of absolute immunity under

the alleged facts would stretch the outer perimeter of

presidential duty to result in immunity to the officeholder,

rather than to the execution of official duties. See id. at 27.

B.

Alternatively President Trump contends that he is entitled

to official-act immunity because he took the alleged actions in

an exercise of his Article II duty to “take Care that the Laws be

faithfully executed.” U.S. CONST. art. II, § 3; Appellant’s Br.

at 27-31. The court explains why this contention must fail. Op.

Pt. II.B.2.

The President’s authority to exercise executive power in a

specific manner “must stem either from an act of Congress or

from the Constitution itself.” Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 585 (1952). Article II and the Take

Care Clause do not grant the President boundless authority to

supervise, control, or otherwise interfere with procedures

entrusted by law to other branches of government. In the

district court, President Trump failed to identify any

constitutional, much less statutory, provision that authorized

the official acts allegedly taken — whether his tweets, his rally

6

speech, or his failure to act promptly when the Capitol was

breached. See Dist. Ct. Op. at 29-30.

President Trump now points to the Electoral Count Act, 3

U.S.C. § 15, as the statute he was attempting to enforce.

Appellant’s Br. at 31. That statute prescribes no role to the

President. The Founders allocated the electoral process to an

intermediate body of electors on behalf of the people, rather

than to the “one who was himself to be the final object of the

public wishes.” THE FEDERALIST NO. 68 (Alexander

Hamilton). Following similar logic, the Electoral Count Act

prescribes a certification process to be carried out by the Senate

and the House of Representatives — not the President. The

President lacks an identified duty to faithfully execute the laws

for the certification of electoral votes.

President Trump has failed to identify any specific

provision, other than the Take Care Clause generally, that

would grant him the authority to execute or enforce Electoral

College certification procedures. Scholarly interpretations of

Article II point to the passive voice of the Take Care Clause —

“take Care that the Laws be faithfully executed” — as implying

that the President must have some degree of direction, power,

control, or supervision over the officials engaging in that

execution. See Dist. Ct. Op. at 30 (citing 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)). By design, then,

the President has specific and limited control over the co-equal

legislative branch (e.g., the veto power).

II.

Mine is a partial concurrence because the remaining parts

of the court’s opinion address issues unnecessary to dispose of

7

the sole issue now on appeal. The court has no occasion to

define a “framework” of analysis for the district court on

remand and acknowledges that its framework does not apply

now. See Op. Pt. II.B.1.c. The Supreme Court’s framework in

Nixon and Clinton suffices. See Op. Pt. II.A. Similarly, the

court has no occasion to address additional contentions of the

plaintiffs, Op. Pt. II.C.1, nor the contention by the United States

in response to the request for its views, Op. Pt. II.C.2; Order

(Dec. 20, 2022). Those contentions may become relevant

during the district court’s continued consideration of the

parties’ arguments but they are not yet before this court.

Notwithstanding the importance of the absolute immunity

issue, the record suggests no reason for this court to direct the

order of the district court’s proceedings on remand. The district

court has signaled appreciation of the sensitive institutional

issue in addressing a presidential claim of absolute immunity,

and there is nothing to suggest this will not continue. At this

early stage of the proceedings, this limited interlocutory appeal

offers scant insight into how the district court proceedings will

and should proceed. Significantly, as well, this court has no

reason to presume that the record in a subsequent appeal will

be limited to that now before the court. And the district court

is well able to consider arguments of the parties’ counsel and

rule in accord with precedent on standards of review for

motions for summary judgment, rendering Part III unnecessary.

See Op. Pt. III.