Last week, the D.C. Circuit issued one holdover opinion in Blassingame v. Trump.  The panel (Srinivasan, Katsas, Rogers) originally heard argument in December 2022.

In Blassingame, the panel confronted the question whether former President Trump was “absolutely immune” from a suit for damages for actions leading up to and on January 6.  Chief Judge Srinivasan’s majority opinion holds “no,” reasoning that a “sitting President running for re-election” is acting “in an unofficial capacity [that] cannot qualify for official-act immunity.”  Slip op. 5.  The majority opinion carefully applies the two relevant Supreme Court precedents on presidential immunity, see Nixon v. Fitzgerald, 457 U.S. 731 (1982); Clinton v. Jones, 520 U.S. 681 (1997), when addressing (and rejecting) former President Trump’s arguments that (1) his actions were “official presidential actions because they amounted to speech on matters of public concern” and (2) his actions “came within his constitutional duty under the Take Care Clause.”  Slip op. 23. 

Judge Katsas concurred to suggest that the majority’s approach is “well-tailored to identify campaign speech,” does not “threaten to strip immunity from other kinds of presidential speech,” and is “flexible enough to accommodate rare cases where even speech made during a campaign event may be official.”  Judge Rogers concurred in part, but she declined to join certain “dicta” in the majority opinion that offered guidance to the district court on remand.