Rule of Law

Swalwell v. Trump

In Swalwell v. Trump, the U.S. District Court for the District of Columbia is considering whether former President Donald Trump is entitled to absolute presidential immunity from damages liability for allegedly inciting a riot at the U.S. Capitol.

Case Summary

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 plaintiff in this case, U.S. Representative Eric Swalwell, sued Trump for damages for the harm these actions caused him.  Among other things, Swalwell alleges that Trump conspired with others to prevent him from carrying out his official duties as prescribed by the U.S. Constitution.  Specifically, Article II, Section 1 and the Twelfth Amendment of the Constitution task Congress with counting and approving the votes of the Electoral College to elect the next President and Vice President of the United States, and Swalwell alleges that Trump encouraged the violent disruption of this constitutionally mandated process for his personal gain.

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 Swalwell on behalf of law professors who are experts in constitutional law, executive immunity, and separation of powers principles.  Our brief argues that Trump is not entitled to absolute presidential immunity.

Our brief makes two key points.  First, it explains 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 argues 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, our brief argues that the separation of powers concerns and public policy considerations underlying 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, seeks to invoke the immunity doctrine as a shield from damages liability for private conduct that allegedly sought to preserve 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, our brief argues that neither of the rationales underlying absolute presidential immunity justifies application of that doctrine in this case.

Case Timeline

More from Rule of Law

Rule of Law
July 28, 2021

Originalism Watch, Sixth Circuit Edition Part II: Judge Thapar Calls for the Supreme Court to “Breath[e] New Life” Into the Nondelegation Doctrine

Back in April, my colleague, David Gans, observed that Sixth Circuit Judge John Bush’s concurrence...
By: Miriam Becker-Cohen
Rule of Law
July 27, 2021

RELEASE: CAC President Commends 1/6 Committee for Beginning Important Work, Urges Accountability

WASHINGTON – As the bipartisan Jan. 6 Select Committee holds its first hearing, Constitutional Accountability Center President Elizabeth Wydra issued the following statement and is available...
By: Elizabeth B. Wydra
Rule of Law
July 22, 2021

OP-ED: The One Area Where Supreme Court Jurisprudence Is Actually Improving Thanks to Originalism

Slate
For decades, the Supreme Court has repeatedly deferred to the police when judging the validity...
By: David H. Gans
Rule of Law
July 27, 2021

#PurpleChairChat: Supporting the Next Generation of Constitutional Progressives

CAC’s interns, Dylan Hosmer-Quint of Harvard Law, and Gilbert Orbea and Saja Spearman-Weaver of Yale Law, discuss the great work they have...
By: Elizabeth B. Wydra
Rule of Law
July 16, 2021

Rent regulations are not unconstitutional

New York Daily News
Some New York City landlords are pushing for an expansive misreading of the Constitution to serve their...
By: Elizabeth B. Wydra, By Christopher Serkin
Rule of Law
U.S. District Court for the District of Columbia

Blassingame v. Trump

In Blassingame v. Trump, the U.S. District Court for the District of Columbia is considering whether former President Donald Trump is entitled to absolute presidential immunity from damages liability for allegedly inciting a riot at...