On January 6, 2021, a crowd of supporters of then-President Donald Trump marched on the U.S. Capitol in an attempt to forcibly prevent Congress from certifying the results of the 2020 presidential election.  Trump allegedly incited that action by, among other things, encouraging attendance at the January 6 protest and urging the crowd to “fight like hell” and “take back [the] country with . . . strength.”  The plaintiffs in these cases, consolidated on appeal, two Capitol Police officers and twelve members of Congress, sued Trump for damages for the harm these actions caused them.  Among other things, the plaintiffs allege that Trump’s unlawful conduct caused them to suffer both physical and emotional injuries.

Trump filed a motion to dismiss, arguing in part that he is entitled to absolute presidential immunity and therefore cannot be held liable for the events on and leading up to January 6.  CAC filed an amici curiae brief in the D.C. District Court in support of the plaintiffs on behalf of law professors who are experts in constitutional law, executive immunity, and separation of powers principles.  On February 18, 2022, the D.C. District Court issued its decision, ruling in favor of plaintiffs and rejecting Trump’s claim that he is absolutely immune from all claims in the litigation.

In March of 2022, Trump appealed to the United States Court of Appeals for the District of Columbia Circuit.

On September 20, 2022, CAC filed an amici curiae brief on behalf of law professors in the D.C. Circuit in support of the plaintiffs. The brief made two key points.

First, it explained that absolute presidential immunity does not shield a former president sued in his personal capacity from damages liability for unofficial conduct.  The Supreme Court has determined that absolute presidential immunity protects a president from private suits for damages challenging official acts, and it has held that that immunity extends to the “outer perimeter” of a president’s official responsibility.  But the Court has made clear that such immunity does not extend beyond the “outer perimeter” of a president’s official duties.  In other words, there is no absolute immunity for a president’s unofficial acts.  Our brief argued that Trump’s conduct in allegedly inciting a riot at the Capitol to forcibly disrupt a session of Congress fell far outside the outer perimeter of his official responsibility and therefore does not warrant immunity.

Second, the brief argued that the separation of powers concerns and public policy considerations motivating the Supreme Court’s immunity precedent further compel the denial of Trump’s claim for absolute immunity.  The Supreme Court has explained 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.  Trump, however, sought to invoke the immunity doctrine as a shield from damages liability for private conduct that allegedly sought to advance his own private interests by forcibly interfering with Congress’s official functions.  To apply the doctrine of presidential immunity in this case would therefore be a perversion of the separation of powers.  And the public interest rationale for presidential immunity lies in ensuring that an official may act without fear of personal liability in fulfilling the responsibilities of his public office.  That rationale is inapplicable when an official is pursuing his own personal agenda.  Thus, the brief argued that neither of the rationales motivating absolute presidential immunity justifies application of that doctrine in this case.

On December 1, 2023, the D.C. Circuit panel affirmed the district court’s denial of Trump’s motion to dismiss the claims against him on the grounds of presidential immunity. Echoing our brief, the court observed that “[w]hen a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act.”