Published by The Lawfare Institute
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Former President Trump is attempting to claim absolute immunity from liability in three civil suits challenging his role in inciting an insurrection at the U.S. Capitol on Jan. 6. But Supreme Court precedent, as well as the separation of powers and policy considerations, compel the conclusion that Trump cannot escape liability for his actions, including encouraging, for his personal gain, the violent disruption of a constitutionally mandated session of Congress. This conclusion is critical to preserving the essential principle that no one—not even a president—is above the law.
Twelve members of Congress and two U.S. Capitol Police officers have brought three related suits for damages against Trump and others (including Rudy Giuliani and Donald Trump Jr.), alleging that the defendants’ actions on and leading up to Jan. 6 caused them harm and violated federal and D.C. law. For his part, Trump has moved to dismiss the lawsuits, arguing, among other things, that he is entitled to absolute presidential immunity from damages liability. Judge Amit Mehta of the U.S. District Court for the District of Columbia will soon decide whether these cases—Thompson v. Trump, Swalwell v. Trump, and Blassingame v. Trump—will go forward. As my organization, the Constitutional Accountability Center, explained in amicus briefs that we filed in these cases on behalf of legal scholars who are experts in constitutional law, executive immunity, and separation of powers principles, the court should deny Trump’s bid for immunity.
The facts at issue in these cases are seared in the memories of all who watched the shocking events of Jan. 6 unfold. That day, a crowd of supporters of then-President Trump marched on the U.S. Capitol in an attempt to forcibly prevent Congress from certifying the results of the 2020 presidential election. In the days leading up to Jan. 6, Trump frequently characterized the election as having been “rigged” and “stolen,” and he repeatedly signaled his support for those who threatened to use violence to challenge the results. In December 2020, he applauded the occurrence of “Stop the Steal” rallies across the country, tweeting, “WE HAVE JUST BEGUN TO FIGHT!!!” He encouraged his supporters to attend his “[b]ig protest in DC on January 6th,” which he promised would “be wild!”
When he spoke to the crowd that gathered that day, Trump explained that Congress was in the process of certifying the election results, telling his supporters, “Now it is up to Congress to confront this egregious assault on our democracy. ... [Y]ou’ll never take back our country with weakness. You have to show strength, and you have to be strong.” After the crowd began chanting, “Storm the Capitol,” “Invade the Capitol Building,” and “Take the Capitol right now,” Trump declared, “Something is wrong here, something is really wrong, ... and if you don’t fight like hell, you’re not going to have a country anymore.”
The plaintiffs allege that Trump’s actions were intended to—and did, albeit temporarily—prevent Congress from carrying out its official duties as prescribed by the U.S. Constitution. Specifically, Article II, Section 1 and the Twelfth Amendment task Congress with counting and certifying the Electoral College’s votes to elect the president and vice president, and the plaintiffs allege that Trump encouraged the violent disruption of this constitutionally mandated process for his personal gain.
The Supreme Court has held that a president is absolutely immune from private suits for damages challenging conduct that falls within the “outer perimeter” of the president’s official responsibility. But the court has made clear that immunity stops there; it does not extend beyond the “outer perimeter” of his official duties. A president therefore does not enjoy absolute immunity for his unofficial acts. Accordingly, a key question in these cases is whether Trump’s conduct on and leading up to Jan. 6 was “official.”
The first Supreme Court case to address the scope of presidential immunity was Nixon v. Fitzgerald, in which a former management analyst with the U.S. Air Force sued former President Nixon for Nixon’s involvement in terminating him from that post, an alleged violation of federal law and the First Amendment. Ruling for Nixon, the court held that a president “is entitled to absolute immunity from damages liability predicated on his official acts.” The court explained that “[b]ecause of the singular importance of the President’s duties,” and because “a President must concern himself with matters likely to ‘arouse the most intense feelings,’” the president must be able to “make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system” without fear of litigation for damages. Accordingly, the court concluded that when a president makes those decisions constitutionally entrusted to him as president, courts should refrain from entertaining private suits for damages challenging that official conduct, as those suits could hamper the president’s ability to do his job.
Fifteen years later in Clinton v. Jones, the court held unanimously that absolute immunity does not extend to acts beyond the outer perimeter of a president’s official responsibility. Jones involved a private suit for damages against then-President Clinton in which the plaintiff alleged that Clinton had sexually harassed her before he became president. The court examined the rationale underlying its decision in Fitzgerald—that “immunity serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability” and without “rendering the President ‘unduly cautious in the discharge of his official duties’”—and concluded that “[t]his reasoning provides no support for an immunity for unofficial conduct.” The court held that Clinton remained “subject to the laws for his purely private acts,” and it rejected Clinton’s “effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office.” Thus, the case against Clinton proceeded, even though he was president at the time of the lawsuit.
In applying this Supreme Court precedent, the district court should determine that Trump’s alleged incitement of a riot at the Capitol to forcibly interrupt a constitutionally mandated session of Congress went well beyond the outer perimeter of his official responsibility and therefore does not warrant immunity. Although Trump, unlike Clinton, took the challenged actions while president, his alleged actions were nevertheless “unrelated to any of his official duties as President of the United States” and, therefore, fell well outside the “outer perimeter” of his presidential responsibility.
The Supreme Court has stated that the president’s power to act “must stem either from an act of Congress or from the Constitution itself.” The Constitution, as originally written, gave Congress the responsibility to count Electoral College votes, and although the Constitution has repeatedly been amended to address the election, succession, or removal of the president from office, it still specifies no role for the president in the process of counting and certifying those votes. Likewise, although Congress has legislated in great detail on this topic, it has also never authorized the president to participate in the counting of electoral votes.
Moreover, there is plainly no constitutional or legislative authority for an incumbent president to encourage the violent disruption of a congressional proceeding—especially one constitutionally mandated for the democratic transfer of power. In fact, the only circumstance in which the Constitution explicitly authorizes the president to adjourn Congress and thereby prevent it from meeting is when the House and Senate disagree as to the time for adjournment. And even if a president can attempt to influence the process of counting and certifying electoral votes, the actions Trump allegedly took to promote the disruption of that process for his personal gain “by force, intimidation, or threat” far exceeded his official responsibility as president.
Nor can Trump credibly claim that his actions were authorized under the president’s constitutional duty to “take Care that the Laws be faithfully executed.” The Constitution and federal law require Congress to meet on Jan. 6 to count and certify the Electoral College’s votes, yet Trump’s alleged actions encouraged the violent disruption of that process. Regardless of whether Trump truly believed that the election was “rigged” or “stolen,” Trump’s alleged actions cannot be characterized as “tak[ing] Care that the Laws be faithfully executed”—not when they directly contravened those laws.
These cases are therefore very different from Fitzgerald, in which the court held that the president enjoyed absolute immunity from liability for civil damages. In Fitzgerald, the court determined that the challenged decision-making was “clearly ... within the President’s constitutional and statutory authority” and was indeed “mandate[d]” by his office. Far from being “mandate[d]” by his office, however, the actions that Trump took as a disgruntled candidate for office—including encouraging a crowd of thousands to infiltrate the “People’s House” and violently prevent Congress from performing its own official functions—were neither constitutionally nor statutorily authorized. In short, they were unofficial, and Trump is not entitled to invoke immunity for those private actions simply because he held the office of president when he committed them.
And if this straightforward application of Supreme Court precedent weren’t enough, the separation of powers principles and public policy considerations underlying the court’s immunity precedent further compel the denial of Trump’s bid for absolute immunity.
The Constitution does not mention presidential immunity. Instead, courts have created the absolute immunity doctrine by drawing on the English common law. In particular, the Supreme Court has reasoned that separation of powers principles and public policy concerns necessitate immunizing presidents and certain other officials tasked with performing the most sensitive functions from private suits challenging officials’ efforts to carry out those functions.
Thus, the court stated in Fitzgerald that under separation of powers principles, courts must refrain from reviewing a president’s official actions in private suits for damages, as the threat of such litigation could inhibit the performance of his official functions. Even Trump argued in his motions to dismiss that absolute immunity is “a key principle of separation of powers.” And the public interest rationale for immunity is similarly grounded in an understanding that official immunity is “not for the protection or benefit of a malicious or corrupt [official], but for the benefit of the public, whose interest it is that the [officials] should be at liberty to exercise their functions with independence and without fear of consequences.”
Neither of those two rationales underlying the presidential immunity doctrine supports Trump’s bid for immunity in these cases. In fact, they counsel strongly against it.
To apply the doctrine of presidential immunity in this case would be a perversion of the separation of powers and a threat to the rule of law. As Chief Justice Warren Burger explained in his concurring opinion in Fitzgerald, “The essential purpose of the separation of powers is to allow for independent functioning of each coequal branch of government within its assigned sphere of responsibility, free from risk of control, interference, or intimidation by other branches.” But Trump’s alleged actions challenged in these cases—including inciting a riot to forcibly disrupt a constitutionally required session of Congress—were designed specifically to interfere with the independent functioning of a branch of government. It would therefore be particularly inappropriate for Trump to be able to hide behind the shield of absolute immunity—which is intended to preserve the separation of powers—for his flagrant attempt to forcibly disrupt Congress’s lawful duties for his personal gain.
The public interest in maintaining a well-balanced and functioning government further compels the denial of Trump’s immunity claims in these cases. Because the plaintiffs are not challenging any of Trump’s official conduct, the public policy considerations that might justify insulating a president from liability for his official functions are inapposite here. Indeed, even if a court deemed it appropriate to immunize a president for some unofficial conduct so as not to chill any official conduct, it would be particularly inappropriate to immunize the conduct in this case, given that it was designed to prevent a branch of the federal government from fulfilling its constitutionally prescribed responsibility. Put differently, allowing Trump to get away with his alleged attempt to prevent, “by force, intimidation, or threat,” the constitutionally required certification of the election results and the orderly transition of power would only undermine the public interest in maintaining a functioning government that respects the rule of law.
In short, the cases against Trump should go forward. Not only does the proper application of Supreme Court precedent foreclose Trump’s attempts to invoke absolute immunity for his alleged conduct, but the separation of powers principles and public policy considerations underlying that precedent further demonstrate why his attempts must fail. And denying Trump’s efforts to hide behind the presidential immunity doctrine for his most unpresidential conduct aimed at undermining democracy is vital to ensuring accountability and the rule of law.