In 2017, President Trump was sued for domestic and foreign emoluments violations. Each complaint was made in the president’s “official capacity.” In a series of amicus briefs, Seth Barrett Tillman and I argued that these “official status” lawsuits were inappropriate. In fact, not everything a president does while in office is an “official act.” Rather, under established case law, a government official in his or her official capacity violates the Constitution if, and only if, it is government policy or custom. must Engaged in conduct that violated federal law. Harvard v. Merlot (1991). Nonetheless, the plaintiffs never claimed that President Trump acted consistent with any government policy or practice. The plaintiffs also did not accuse Trump of acting “under the guise of the law,” a prerequisite for a competency claim. Rather, these cases involve alleged conduct that President Trump personally believes to be true.
As we explained in our 2022 article, the president has three Body: [1] The official competency claim involves government policy or custom; [2] Personal capacity claims involve actions taken by government officials in the name of the law; and [3] Individual claims involve private actions and do not involve state action.
Trump v. United States It provides some support for our position and also has a certain symmetry with the tripartite division of presidential immunity.
Chief Justice Roberts acknowledged that not everything the president does is official and there are some unofficial actions.
The president does not enjoy immunity for unofficial actions, and not everything the president does is official.
To be sure, the standard addresses presidential immunity, but a similar framework may be extended to competency analyzes in civil litigation.
The court noted that it is often difficult to distinguish between the presidential status of a president and the presidential status of a politician.
But the breadth of the president’s “discretionary responsibilities” under the U.S. Constitution and law “over a wide range of areas, many of which are highly sensitive,” often makes it “difficult to identify which areas.” [his] Countless “functions” encompass a specific action. Speak to and on behalf of the American peoplelook trump card v. hawaii (2018) – can certainly be considered official even if there is no obvious link to a specific constitutional or legal provision. For these reasons, the immunity we recognize extends to the “periphery” of the President’s official duties, covering actions that are “not clearly or clearly beyond the scope of the President’s duties.” [his] authority. brazing game v. trump card(CADC 2023) (omit inner quotes); see fitzgerald (Noting that we “refuse to draw finer functional lines than history and reason support”).
The president also has the authority to speak with people at all levels of government, even without complying with certain “specific” federal regulations.
Trump argued that the alleged conduct was official because it was done to ensure the integrity and proper administration of federal elections. Of course, the president’s duty “to see to it that the laws are faithfully executed” obviously includes enforcing federal election laws passed by Congress. Art. II, §3. And the President’s The broad authority to speak on matters of public concern does not preclude him from communicating publicly about the fairness and integrity of federal elections just because he is running for re-election. Cf. hawaii. Likewise, the president can speak and discuss such issues with state officials—even if there is no specific federal responsibility requiring his communication—to encourage them to act in the following ways: Promote the President’s views on the public interest.
The last sentence is the most important. As a political figure, the president will always advance his public opinion. As I pointed out during Trump’s first impeachment, the concept of the public interest will always overlap with politics. The court at least suggested that the president’s use of his powers to promote the public interest, as he believed, could not be criminalized. To give an example that arose during Article 3 proceedings, the President could fail Is using his power to stop the rebellion itself tantamount to participating in it? Seth and I believe the answer is no, because the president must have discretion no Use force when he believes the costs outweigh the benefits.
The court also addressed the line between the president as a candidate and the leader of a political party. (Perhaps for the first time in a long time, the current president is not the party leader.)
In some cases, however, presidents speak in vague tones despite their prominence. Unofficial capacity – perhaps as a candidate for public office or party leadership. In this case, an objective analysis of “content, form and context” will inevitably inform the investigation. Snyder v. phelps (2011). But “there’s not always a clear line between the two. [the President’s] Personal and business matters. Mazars. Therefore, analysis must be fact-specific and can be challenging.
The courts viewed the exercise of a “bully pulpit” as part of these core powers. This “pulpit” is designed to advance the President’s concept of the “public interest” or “public interest” – even in the absence of direct federal regulations.
The alleged conduct primarily includes Trump’s communications in the form of tweets and public speeches. The president has “extraordinary power to speak to and on behalf of his fellow citizens.” hawaii; see Lindeke v. Fried. As the sole person charged by the Constitution with enforcing the laws of the United States, the president oversees, and therefore often speaks publicly about, a vast array of activities that touch nearly every aspect of American life. Indeed, a long-recognized aspect of presidential power is the use of the “bully pulpit” of the office to persuade Americans, including through forceful or critical rhetoric, in ways that the president believes will advance the public interest. He is even expected to comment on issues of public concern that may not directly involve federal government activity, such as comforting the nation after an emergency or tragedy. For these reasons, most of the president’s public communications are likely to fall within the scope of his official duties.
Justice Alito also spoke from his podium Murthy objection:
According to the government, these officials simply use the presidential “pulpit” to “inform, persuade and protect the public.” This argument introduces a new understanding of the term “bully pulpit,” a term coined by President Theodore Roosevelt to denote the president’s superior (i.e., “bullying”) position in persuading the public (i.e., his “pulpit”). ”). But Flaherty, Slavitt and other officials sending emails and phone calls via Facebook were not addressing the public from a symbolic pulpit. Instead, they engaged in a secret censorship program that was only exposed after the plaintiffs demanded their emails and congressional committees obtained them through subpoenas. If these communications represent an exercise in the bully pulpit, then everything a senior federal official says in private to any private citizen must also represent an exercise in the presidential bully pulpit. This extends the concept beyond the breaking point.
Chief Justice Roberts served in two presidential administrations. He understands, perhaps better than other justices, the power of the president and the risk of the law inhibiting that institution. In an alternate universe, Justice Kagan, who experienced both Whitewater and Ken Starr, would agree.
