DC Circuit Court Allows Incitement Case To Proceed: An Analysis

4 min readDec 1, 2023
Trump urges the mob to “fight like Hell” on January 6th

Several Capitol police officers sued Donald Trump for inciting the riot where they sustained injuries. The causes of action included aiding and abetting the assault on police officers. Consolidated with other cases it is now captioned Blassingame and Hemby v. Trump.

Trump motioned to dismiss claiming “official act immunity.” Today, while acknowledging its decision was not necessarily the final word on that issue, the D.C. Circuit United States Court of Appeals denied said motion to dismiss. You can read the decision HERE.

The decision focuses on two Supreme Court cases and the on going tension between them. So let’s discuss.

The first is Nixon v. Fitzgerald. Fitzgerald was a Department of Defense employee fired by Nixon. Fitzgerald sued alleging wrongful discharge, asserting the firing was in retaliation for testimony he gave Congress that presented Nixon in a bad light. The Supreme Court ruled in favor of Nixon, dismissing the case declaring the President is absolutely immune from lawsuits for acts within sphere of his official duties. This is true even if Fitzgerald was correct and his firing was retaliatory. Since hiring and firing federal officers is within the sphere of a President’s duties his doing so is immune from lawsuit even in cases where said firing is wrongful. The notion here is that a President must be free to act in the performance of his duties without concern for being sued. Notably the Supreme Court found that any conduct within the “outer perimeter” of a President’s duties is immune.

The second case is Clinton v. Jones. Paula Jones sued Clinton claiming that as Governor of Arkansas he sexually harassed her and then fired her when she refused his advances. All of this occurred before Clinton became President. Still, Clinton motioned to dismiss arguing the Nixon case conferred him absolutely immunity from lawsuits while he was a sitting President and that dealing with the lawsuit would distract from his duties as President. The Supreme Court disagreed finding that his pre-presidential acts obviously could not fall within even the outer perimeter of his Presidential duties.

That last point creates an obvious distinction for Trump to exploit. The acts for which he is sued occurred while he was President. Trump argued that the speech at the Ellipse, and other alleged incitement, were about matters of public interest and that speaking on matters of public interest obviously falls within the outer perimeter of his duties as President.

The Court of Appeals rejected that argument finding that campaigning is not within the duties of being President. Quoting from the decision:

The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office . . . when a sitting President acts in his capacity as a candidate for re-election, he acts as office-seeker, not office-holder. The presidency itself has no institutional interest in who will occupy the office next. Campaigning to attain that office thus is not an official function of the office. Rather, an incumbent President’s interests in winning re-election have the same purely private character as those of his challengers . . . Accordingly, a President acts in a private, unofficial capacity when engaged in re-election campaign activity.”

Allowing immunity for campaign activities would create an imbalance in the contest where the sitting President could get away with doing things that his challenger could be freely sued for.

As to the question of whether a President’s words on a matter of public interest are inside or outside the outer perimeter of his duties, the answer is that context decides as that such words can be either. For example, commentary during a President’s State of the Union Address are clearly within this duties, but even the exact same words might not be if uttered in a campaign advertisement or at a campaign rally.

Because the question is fact sensitive the court deemed it premature to dismiss the case at this stage where the court must accept the facts as alleged by the plaintiffs. The court acknowledged that Trump is free to, following discovery, assert facts he feels establish that the alleged conduct was within his official duties. He could then seek summary judgment from the District Court on that basis in the future.

So it is not over, and this case will go on for quite sometime. It is even conceivable that the Supreme Court will accept review of the Court of Appeals decision released today.




Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80