United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 23-7010 September Term, 2023
FILED ON: DECEMBER 29, 2023
CONRAD P. SMITH, ET AL.,
APPELLEES
v.
DONALD J. TRUMP, SOLELY IN HIS PERSONAL
CAPACITY,
APPELLANT
DONALD J. TRUMP FOR PRESIDENT, INC., ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-2265-APM)
Before: SRINIVASAN, Chief Judge, GARCIA, Circuit Judge, and ROGERS, Senior Circuit
Judge.
JUDGMENT
This appeal was considered on the record from the United States District Court for the
District of Columbia and on the briefs of the parties. See D.C. Cir. R. 34(j). The panel has
accorded the issues full consideration and has determined that they do not warrant a published
opinion. See D.C. Cir. R. 36(d). It is hereby
ORDERED AND ADJUDGED that the district court’s denial of Appellant’s motion to
dismiss the claims against him on the grounds of presidential immunity be AFFIRMED.
In Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023), this court held that former President
Donald J. Trump had failed to demonstrate, at the motion-to-dismiss stage, that he was entitled to
absolute presidential immunity from certain civil damages claims against him. Id. at 3–5. Those
claims arose out of actions he allegedly had taken related to the January 6, 2021 Capitol riot. Id.
at 4. President Trump had contended that he should be afforded immunity because his alleged
actions constituted speech on matters of public concern. Id. at 5, 14. Such speech was, in his
2
view, “invariably an official function.” Id. at 5. We rejected that argument. The Supreme Court,
we observed, has made clear that “absolute presidential immunity . . . is an ‘official immunity,’
that extends no further than the outer perimeter of a President’s official responsibility.” Id. at 13
(quoting Clinton v. Jones, 520 U.S. 681, 693–94 (1997)). And we reasoned that although a
President often acts officially when speaking on matters of public concern, he does not always do
so. Id. at 14–16. A public-concern test, we therefore concluded, was “ill-suited” to determining
President Trump’s entitlement to immunity. Id. at 16. The salient question in Blassingame, we
explained, was instead whether President Trump’s alleged actions reasonably could be understood
as official functions of the presidency, in which case official-act immunity would attach, or,
alternatively, whether they reasonably could be understood only as re-election activity, in which
case it would not. See id. at 16–19.
This case is indistinguishable from Blassingame in all relevant respects. The plaintiffs
seek damages from President Trump (among others) for actions he allegedly took in connection
with the January 6 riot. On appeal, the only question is whether President Trump has demonstrated
his entitlement to official-act immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982) (“The
burden of justifying absolute immunity rests on the official asserting the claim.”). He argues, as
he did in Blassingame, that he is entitled to immunity because his alleged actions amounted to
speech on matters of public concern. That argument fails for the reasons explained in Blassingame:
“whether [President Trump’s] actions involved speech on matters of public concern bears no
inherent connection to the essential distinction between official and unofficial acts.” 87 F.4th at
14.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to withhold issuance of the mandate until seven days after resolution of any timely petition
for rehearing or rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk