Thread by @judgeluttig

This explanation from today’s D.C Circuit opinion for why the former president is not entitled to immunity from civil suit for his conduct “up to and on January 6” is the same explanation for why he is also not entitled to immunity from criminal prosecution for that same conduct.

It's also the explanation for why the former president violated the Constitution’s Executive Vesting Clause by attempting to remain in power instead of "return to the mass of the people," when "the mass of the people” had elected then-candidate Joe Biden to be the next president:

“The principle that an incumbent President seeks re-election in his private capacity rather than in his official capacity finds its roots in the Framing. . . . The essence of those Framing-era principles, in the words of Chief Justice Marshall,

is that “the president is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.” United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit Justice).

That fundamental understanding holds regardless of whether the person elected to serve as the next President also happens to be the incumbent. A sitting President has no inherently greater claim to serving the next four-year term than does any other candidate. . . .

It follows that, 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. . . .

Accordingly, a President acts in a private, unofficial capacity when engaged in re-election campaign activity.”