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.
Chief Justice Roberts recognized that not everything the President does is official, and there are some unofficial acts.
The President enjoys no immunity for his unofficial acts, and not everything the President does is official.
To be sure, this standard concerns presidential immunity, but a similar framework may extend to the capacity analysis for civil lawsuits.
The Court observed that it is often difficult to disentangle the President-as-President and the President-as-a-politician.
But the breadth of the President's "discretionary responsibilities" under the Constitution and laws of the United States "in a broad variety of areas, many of them highly sensitive," frequently makes it "difficult to determine which of [his] innumerable 'functions' encompassed a particular action." And some Presidential conduct—for example, speaking to and on behalf of the American people, see Trump v. Hawaii (2018)—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision. For those reasons, the immunity we have recognized extends to the "outer perimeter" of the President's official responsibilities, covering actions so long as they are "not manifestly or palpably beyond [his] authority." Blassingame v. Trump(CADC 2023) (internal quotation marks omitted); see Fitzgerald (noting that we have "refused to draw functional lines finer than history and reason would support").
The President further has the power to speak with people at all levels of government, even when not acting pursuant to some "specific" federal statute.
On Trump's view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election. Of course, the President's duty to "take Care that the Laws be faithfully executed" plainly encompasses enforcement of federal election laws passed by Congress. Art. II, §3. And the President's broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election. Cf. Hawaii. Similarly, the President may speak on and discuss such matters with state officials—even when no specific federal responsibility requires his communication—to encourage them to act in a manner that promotes the President's view of the public good.
The last sentence is the most important. The President, as a political figure, will invariably advance his conception of the public good. And that conception of the public good will invariably overlap with politics, as I pointed out during the first Trump impeachment. The Court, at a minimum, suggested that the President using his powers to promote the public good, as he sees it, cannot be criminalized. To use an example that came up during the Section 3 litigation, can the President's failure to use his powers to stop an insurrection itself amount to engaging in insurrection? Seth and I argued that the answer is no, because the President must have the discretion to not use force when he thinks the costs outweigh the benefits.
The Court also spoke to the line between when a President in his capacity as a candidate, and party leader. (Perhaps for the first time in a long time, the sitting President is not the party leader.)
There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of "content, form, and context" will necessarily inform the inquiry. Snyder v. Phelps (2011). But "there is not always a clear line between [the President's] personal and official affairs." Mazars. The analysis therefore must be fact specific and may prove to be challenging.
The Court saw the exercise of the "bully pulpit" as part of those core powers. And that "bully pulpit" is designed to advance the President's conception of the "public good" or "public interest"–even when there is no federal statute directly on point.
The alleged conduct largely consists of Trump's communications in the form of Tweets and a public address. The President possesses "extraordinary power to speak to his fellow citizens and on their behalf." Hawaii; cf. Lindke v. Freed. As the sole person charged by the Constitution with executing the laws of the United States, the President oversees—and thus will frequently speak publicly about—a vast array of activities that touch on nearly every aspect of American life. Indeed, a long-recognized aspect of Presidential power is using the office's "bully pulpit" to persuade Americans, including by speaking forcefully or critically, in ways that the President believes would advance the public interest. He is even expected to comment on those matters of public concern that may not directly implicate the activities of the Federal Government—for instance, to comfort the Nation in the wake of an emergency or tragedy. For these reasons, most of a President's public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.
Justice Alito also address the bully pulpit in his Murthy dissent:
According to the Government, the officials were simply using the President's "bully pulpit" to "inform, persuade, and protect the public." This argument introduces a new understanding of the term "bully pulpit," which was coined by President Theodore Roosevelt to denote a President's excellent (i.e., "bully") position (i.e., his "pulpit") to persuade the public. But Flaherty, Slavitt, and other officials who emailed and telephoned Facebook were not speaking to the public from a figurative pulpit. On the contrary, they were engaged in a covert scheme of censorship that came to light only after the plaintiffs demanded their emails in discovery and a congressional Committee obtained them by subpoena. If these communications represented the exercise of the bully pulpit, then everything that top federal officials say behind closed doors to any private citizen must also represent the exercise of the President's bully pulpit. That stretches the concept beyond the breaking point.
Chief Justice Roberts served in two presidential administrations. He, perhaps more than anyone other Justice fully understands the power of the presidency, and the risks of Lawfare to inhibit that institution. In another universe, Justice Kagan–who lived through Whitewater and Ken Starr–would agree.
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