DC Circuit Rules that a President’s Speech as Candidate Is Not Official

The DC Circuit just ruled that three lawsuits against Donald Trump (and others) for actions on January 6 can move forward.

Chief Judge Sri Srinivasan wrote the majority opinion, joined by Greg Katsas and Judith Rogers. He wrote:

When a sitting President acts in his capacity as a candidate for re-election, he acts as office-seeker, not office-holder.

But Katsas — a former Trump White House counsel and a Trump appointee — may have summarized the holding best.

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.

Trump never argued that his actions were official. Instead, he said that when a President speaks on matters of public interest, even as a candidate, he is entitled to immunity.

But all three judges rejected that view.

Srinivasan engaged in an extended discussion of how unfair it would be for a former President running to be elected President again if he were running against the sitting President — that is, the presumed state of the 2024 race. Under Trump’s scheme, Biden would be immune for anything he said as a candidate; Trump would not.

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.

This case — and Trump’s criminal case, presumably — will now focus on certain aspects of January 6 to test whether this was a campaign event or an official event. It will pivot on who paid for what and who organized the event.

There’s a big problem with this opinion. A sitting President cannot be prosecuted if he spends official resources for campaign events. Trump’s White House was repeatedly found to have broken the Hatch Act, and the President and Vice President are not covered by it. So a future Donald Trump (and indeed, all Presidents to some degree) will now have an incentive to bill taxpayers for all events so as to enjoy presidential immunity.

But for now, it’ll go back before Judge Mehta for a renewed discussion about whether this was an official presidential event or a campaign event.

Update: Fixed Judith Rogers/Janice Rogers Brown for probably the 100th time in my life.

28 replies
  1. Ginevra diBenci says:

    EW, you are the best in the business at troubleshooting complex legal findings. After you cited the “big problem” (incentivizing official spending on personally advantageous events), I read the 67-page ruling to see it for myself. It’s undeniably there, but I wonder (given the limitations of this panel’s ultimate power) how much precedent it might set. (I would encourage others who have the time to read it too; characteristically well-written and -reasoned, if knotty in parts.)

    Are you worried that a “Who funds it” standard might be adopted higher up, and thus enshrined as a template?

    • earlofhuntingdon says:

      At a minimum, there needs to be some sort of balancing test. Otherwise, if the sitting President spends a bent dime of public money on an overwhelmingly campaign-oriented event, then the office holder is immune. That’s not right. And would extraneous items count, such as paying the USSS for the time spent protecting the President during it? That would make him immune 24/7. Shouldn’t be that way.

      A guy like Trump – there will be hordes of would be successors more extreme than he is – would spend public money on every campaign event and then tell someone, anyone, “Sue me,” which might not even be possible. It becomes a heads I win, tails you lose problem.

      • Just Some Guy says:

        “And would extraneous items count, such as paying the USSS for the time spent protecting the President during it?”

        Not sure I understand what this question is asking since the Secret Service protects the current President and their family members, retired Presidents and their family members, Congressional leadership, declared Presidential candidates, and foreign dignitaries all with public funds, whether during official duties, campaign events, or even, say, Mitch McConnell shopping at the same Kroger where my parents buy their groceries. I don’t see where this ruling is applicable to USSS funds since they would be protecting Trump on January 6th regardless.

        • earlofhuntingdon says:

          The point is that paying for the USSS is a public expenditure. The hypothetical involved whether paying for their time during an otherwise privately funded campaign event would satisfy the public expenditure requirement of this ruling.

          • Just Some Guy says:

            Yes, it is a public expenditure, authorized by Congress, but it is not “extraneous” nor is there any, by statute, distinction between private or public events for USSS protection. Officials protected by the USSS are granted 24/7 coverage no matter what they’re doing, with public funds. That was true before Trump. Before he was elected President, I literally saw on-duty USSS agents sitting at a restaurant table adjacent to Mitch McConnell and Elaine Chao, drinking Pepsi and refusing free meals. And I don’t think that’s unreasonable. To put it another way, if Trump had never spoken at the Ellipse on January 6th, or even left the White House, the USSS would still be spending taxpayer funds protecting him and the White House, just like they did every during the last 120 days of his candidacy in 2016, his tenure as President-elect, his tenure as President, and now until the day he dies.

            Now, to be sure, there is the separate issue of Trump the “corporate citizen” bilking the taxpayers by overcharging the USSS for use of Trump Organization properties, but that is unrelated to these lawsuits and, again, wouldn’t be related as far as I can tell since there is ample evidence that the Ellipse speech on January 6th was privately organized and privately funded by the Trump campaign (and its surrogates).

            ‘A guy like Trump – there will be hordes of would be successors more extreme than he is – would spend public money on every campaign event and then tell someone, anyone, “Sue me,” which might not even be possible. It becomes a heads I win, tails you lose problem.’

            Trump allegedly already did this to local municipalities for security costs during the 2016 campaign (and maybe in 2020 too? it’s not entirely clear) prior to the 120-day USSS protection window, well before he became President. I am not aware of any outcomes, whether his campaign settled or was even sued (successfully or not) by any of those cities who, quite infamously, got bilked when the bill was due (just like any contractor doing business with the Trump Organization).

            So in sum I’m not really sure what this means either:

            “So a future Donald Trump (and indeed, all Presidents to some degree) will now have an incentive to bill taxpayers for all events so as to enjoy presidential immunity.”

            All Presidents and presidential candidates “bill taxpayers,” in a sense, for security, but campaign events are clearly already considered “extraneous” to official duties, by established laws. Just because there isn’t sufficient enforcement of those laws, or even sufficient punititive remedies within the laws themselves, doesn’t mean that they don’t exist, nor am I sure what else taxpayers would be “billed” for. A President might have immunity from being sued and/or criminally charged for misappropriating taxpayer funds appropriated by Congress for campaign expenditures, but the campaign itself wouldn’t have that same immunity!

  2. Alan_OrbitalMechanic says:

    “But for now, it’ll go back before Judge Mehta for a renewed discussion about whether this was an official presidential event or a campaign event.”

    Is this really a question that can be resolved or needs to be? I mean, there is literally nothing that Trump does (in public at least) that is not a “campaign” event. He keeps the base fed and the news cycle focused on him.

    No matter whether anyone thought it was a “presidential” event there is no question that it was a campaign event in addition to that. I would go so far as to argue that there is no event where Trump is speechifying that he has absolute immunity.

  3. marylou_01DEC2023_1220h says:

    It’s Judith Rogers, not Janice Rogers Brown.

    [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too common (there are more than one Mary Lou in this community) it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

  4. ToldainDarkwater says:

    It doesn’t seem to me that if, for instance, the Trump people used some official money to pay for what is otherwise a clear campaign event that it would turn it into an official event. It’s evidence, but I wouldn’t think it would be definitive.

    There are commenters here who are actual lawyers and probably know better than I, but I would think a court would consider a variety of evidence in making this determination.

    • Scott_in_MI says:

      That was my thought as well. Mehta says that a court “may reliably conclude” that private funding == acting in a private capacity, but that doesn’t mean that a court couldn’t reach the same conclusion if an event were publicly funded.

      • Just Some Guy says:

        Public funding would have to come from Congressional appropriations, it’s not just like a President can say “pay for these campaign billboards out of this year’s Defense budget.” (Though that’s not terribly far off from what Trump tried to do with his cockamamie border wall scheme, sort of, except that in that case he was trying to use shift already-appropriated funds to a public policy of his choosing, not one that Congress had designated the funds for.)

        Congress passes budgets that aren’t just like “throw a bucket of money at some government agency,” they are very carefully-crafted, extremely-detailed and certainly super-duper long-winded documents. But they are also legislation, and legally binding.

        A similar, yet real-world analogy would be the “perfect phone call” with Zelensky, whence Trump threatened withholding already-Congressionally-appropriated public funds for Ukraine unless the newly-elected head of the Ukrainian government “did a favor” and “investigated” Biden, which would be a private benefit to Trump (ie. it would help Trump win in 2020).

  5. Rugger_9 says:

    If Defendant-1 can’t get any of the judges to go for this legalistic dreck (let’s recall that JRB is notorious in her conservative views) it really must have been a stinker of an argument. It also does not bode well for any forthcoming SCOTUS review. As a practical matter, how many days did this appeal cycle take? It might give us a clue about whether Defendant-1 can succeed in pushing Judge Chutkan (and Mehta) off her March trial date.

  6. Abu Jamu says:

    It took the Circuit Appeals panel nearly a year to issue this judgement and opinion, and they didn’t even determine the immunity issue at all, only that the civil suit can proceed.

    Are we to expect the Appeals Court and Supreme Court to provide quick judgements on the interlocutory appeals that will happen to Trump motion to dismiss based on immunity and double jeopardy? The trial is supposed to happen 94 days from now… I assume Chutkan would issue her denials to Trump dismiss motions in mid December…This is the benefit of having a well funded legal team, Trump strategy to delay looks like it will prevail.

    I do not believe the March 4th trial date will happen at all.

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Thanks. /~Rayne]

    • emptywheel says:

      Oh, she may have been holding off on ruling in anticipation of this. She shares a courthouse with these guys.

      I think with this in hand she may ask for f-up briefing, but this will greatly simplify her order.

      • 2Cats2Furious says:

        LOL. I originally read your statement on “f-up briefing” as a genteel way of using a different “f” word, but now I realize you meant “follow-up briefing.”

        Although with Trump’s attorneys, it may be the same thing.

      • WilliamOckham says:

        Judge Chutkan has now ruled on Trump’s MtD based on constitutional grounds. And even managed to work in a footnote quoting this Circuit opinion. I’m wondering if she held off until she could get that footnote in there.

      • 2Cats2Furious says:

        Based on WilliamOckham’s comment, I checked Judge Chutkan’s docket, and she did indeed issue a memorandum and order DENYING Trump’s Motions to Dismiss on both “Presidential immunity” [ECF 74] and on constitutional grounds [ECF 113], the latter of which contains the bogus “double-jeopardy” claim.

        I’m going to have to give the opinion a much more thorough read, but I haven’t yet seen a reference to the DC COA’s opinion. Judge Chutkan manages to distinguish Nixon v Fitzgerald (concerning civil liability) with the pending DC election interference case (concerning criminal liability) just fine on her own. A few choice quotes:

        P. 17: “If the specter of subsequent prosecution encourages a sitting President to reconsider before deciding to act with criminal intent, that is a benefit, not a defect.”

        P. 20: “In the rare case when a former President must [defend himself from criminal prosecution], the Constitution does not proffer the sledgehammer of absolute immunity where the scalpel of procedural protections will suffice.”

        In other words, while the DC COA’s opinion may be helpful for the forthcoming interlocutory appeal, it’s not essential.


        P.S. Any chance I can get off “auto-moderation” status? I think I’ve shown I now know how to behave myself here (not antagonizing bmaz), that I’m not a “troll,” and I can contribute substantive comments. But it is difficult to do so when my comments are stuck in moderation for hours.

  7. TooLoose LeTruck says:

    Right off hand, it does seem like the reality-based community is having a fairly decent week…

    First off, there’s this ruling… Trump apparently CAN be sued for J6!

    Then, there’s the gag order being reinstated in NYS… Trump seems to be determined to test its limits, but at least the gag order is back in effect.

    George Santos got himself frog marched to the railing and tossed overboard…

    At least some hostages in Gaza were freed before the shooting resumed…

    And Henry Kissinger finally left the planet… I personally have no tears to shed for Kissinger’s demise.

    • Rugger_9 says:

      Since she is not a public figure like her husband is, I think the threshold for what is considered defamation is lower. Someone will probably suggest it and maybe a lawyer or two will take it up because of just how disgusting the lies were.

    • earlofhuntingdon says:

      Time for that after Engoron decides the case and it survives appeal. Engoron is working hard to not to fall for Trump’s intentional provocation and avoid giving him fodder to waste time on appeals.

      Engoron has established that there are neutral objectives reasons to conclude that Trump and his businesses committed massive persistent fraud. The goal now is to determine rational penalties for it that will survive appeal. Completing that process will do more damage to Trump’s undeserved stature and ability to inflict harm on others than any number of individual defamation suits.

  8. Spencer Dawkins says:

    Every time Trump and his legal team put forward a legal theory about the 2020 election that would benefit incumbent Biden in 2024 at Trump’s expense, I smile … these guys are SERIOUSLY not good at looking past the ends of their noses.

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