In 2017, President Trump was sued for violating the Foreign and Domestic Emoluments Clauses. Each complaint was brought against the President in his "official capacity." In a series of amicus briefs, Seth Barrett Tillman and I contended that these "official capacity" suits were not proper. Not everything the President does during his tenure is, ipso facto, an "official act." Rather, under settled case law, a government officer violates the Constitution in his official capacity if—and only if—a government policy or custom must have played a part in the violation of federal law. Hafer v. Melo (1991). Still, the plaintiffs never alleged that President Trump acted pursuant to any government policy or custom. Nor did the plaintiffs allege that Trump acted "under the color of law"—a precondition for pleading an individual-capacity claim. Rather, these cases concerned alleged conduct that President Trump took personally.
As we explained in a 2022 article, the President has three bodies: [1] an official-capacity claim involves a government policy or custom; [2] an individual capacity claim involves action taken by a government officer under the color of law; and [3] a personal claim involves private conduct, absent state action.
Trump v. United States provides some support for our position, and also has some symmetry with the presidential immunity trichotomy.
