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A Court Probed Whether Saying "She's Not My Type" In Response To A Rape Allegation Is Part Of A President’s Job

The Justice Department wants to take over Donald Trump’s defense against writer E. Jean Carroll’s defamation suit, a move that would end the case.

Posted on December 3, 2021, at 3:14 p.m. ET

Michael Zarrilli / Getty Images

Former president Donald Trump waves at Truist Park on Oct. 30 in Atlanta.

WASHINGTON — A federal appeals court heard arguments Friday about the fate of writer E. Jean Carroll’s defamation lawsuit against former president Donald Trump, a hearing marked by surreal exchanges where judges considered just how offensive, abusive, or even violent a president could be and have it considered part of their job under the law.

The Justice Department — first under Trump and now under Biden — has been trying to substitute the US government as the defendant in the case instead of Trump. It’s a move that would almost certainly get Carroll’s lawsuit tossed out, since the government is shielded by what’s known as sovereign immunity against libel claims. A district court judge rejected that effort by DOJ and Trump in October 2020, and they appealed; the US Court of Appeals for the Second Circuit heard arguments on Friday.

Carroll sued Trump in late 2019 over statements he made that year in response to her allegation that he raped her in a department store dressing room more than 20 years earlier. Trump denied knowing Carroll and denied assaulting her, and accused her of making the claim in order to sell copies of a book she’d written.

In one interview responding to Carroll’s accusation, he was quoted as saying, “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened.”

That comment jumped out to Second Circuit Judge Denny Chin, who pressed Trump’s personal attorney Alina Habba to explain why the court should find that making that kind of comment was within Trump’s “scope of employment” as president.

“Who is he serving when he says something like, ‘she’s not my type?’ Is he serving the United States of America when he makes that statement?” Chin, who was confirmed under former president Barack Obama, asked.

Habba replied that it was part of his job as president because he had to respond to Carroll’s allegation to the extent it affected his ability to serve. Chin replied that saying “she’s not my type” went beyond a denial. Habba, who recently took over as Trump’s lawyer in the case, replacing his longtime attorney Marc Kasowitz, responded that the judge was focused on the “content” of Trump’s comments when the issue in the case was “context” — that is, whether he was speaking as the president.

Habba said that Trump wasn’t trying to “hide” behind the protections given to federal employees against being sued and continued to maintain that Carroll’s allegations were “meritless.” But echoing the Justice Department’s position, she said that “what is of monumental importance right now is that this is not a political matter. This is not about being a Democrat or a Republican. It is solely to protect the presidency as an institution.”

Judge William Nardini, one of Trump’s nominees to the court, asked Habba if their position was that, under DC law, everything a president said was protected. Habba said that the limit would be if a president made an unprovoked attack on a private citizen. That argument faced skepticism from Nardini and Judge Guido Calabresi, confirmed under former president Bill Clinton, who asked Habba what legal precedent that argument was based on. Habba replied that she didn’t have a case to cite, that was her opinion, prompting Nardini to push her for an answer grounded in the law, saying they weren’t asking what she felt.

Justice Department attorney Mark Freeman attempted to distance the government from Trump, beginning his presentation by making clear that DOJ wasn’t defending Trump’s “crude and offensive comments” in response to Carroll’s “serious accusations of assault.” He told the three-judge panel that the issues presented by Carroll’s attempt to sue Trump implicated the broader interests of the executive branch and the office of the president.

“I’m here because any president facing a public accusation of this kind in which the media is very interested would feel obliged to answer questions from the public, answer questions from the media,” Freeman said.

Chin asked Freeman if the government’s position was that a president or member of Congress could say anything they wanted and be protected against a lawsuit as long as a reporter was there. Freeman said that wasn’t the government’s position and that they weren’t asking the court to adopt a sweeping rule to that effect.

New York Daily News / TNS

E. Jean Carroll in New York State Supreme Court in March 2020

During arguments from Carroll’s lawyer Joshua Matz, the judges explored the pros and cons of the court setting precedent that would narrow the circumstances when an employer — in this case, the federal government — was legally responsible for the behavior of its employees. The court is also considering whether Trump should be considered an employee at all under what’s known as the Federal Tort Claims Act and the Westfall Act, which broadly shield federal employees from being sued as individuals for doing their jobs.

Much of the hearing focused on an in-depth discussion of whether, and how, the New York–based federal appeals court should apply legal precedent set by the local court system in Washington, DC, since Trump’s employment status at the time was rooted in the office that he held in the capital.

Calabresi wondered several times during Friday’s hearing whether it would be best for the circuit to ask the DC Court of Appeals — DC’s equivalent of a state supreme court — to address some of the questions that the case raised. Those questions included what type of behavior fell within a person’s “scope of employment” and whether the consequences of making the employer liable — in Carroll’s case, that she likely would be left without a legal path forward for the alleged defamation — should be a factor in that analysis.

Matz argued that a person’s motive should be an important factor in deciding if their conduct was part of their job. He acknowledged that the DC courts had taken a broader view of what employee conduct an employer was liable for, but said there were limits on that when the employee had a personal motive for acting.

Calabresi then posed a striking hypothetical scenario: Suppose a president was giving out medals and saw someone who had insulted them. When that president put a medal on that person, they then used the medal to choke the person and possibly kill them. Would that fall within the president’s scope of employment?

Matz replied that if there was good reason to believe the president acted with “personal spite and malice,” that would likely fall outside the scope of their position.

Chin asked Matz if they would have had a problem with Trump’s conduct if he’d simply said that Carroll’s allegation wasn’t true. Matz said they wouldn’t have had a problem with that. Chin asked what the standard should be for deciding when a statement crossed the line to defamation, and if a jury would have to do a line-by-line analysis. Matz replied that it could be a line-by-line analysis, but that wasn’t a new approach; he also said this type of case didn’t have to go to a jury, since judges had the tools to decide what a person’s intent was when they spoke.

“If an elected official deliberately harms somebody and does so for reasons that are private, personal reasons as confirmed by the evidence in front of the court, denying a remedy in the name of the nation’s sovereign immunity is at odds with the maxim that nobody is above the law,” Matz said in his conclusion.

As the appeals court decides what to do next, Trump and Habba are preparing for the possibility that the circuit will agree with the district court judge that the Justice Department can’t step into the case. Earlier this week, Habba filed a request to update Trump’s response to the suit to include a counterclaim that accuses Carroll of violating New York’s anti-SLAPP law. The anti-SLAPP law, which was amended by state lawmakers a year ago, is meant to give defendants an early way to get a defamation case dismissed if they can show the purpose is to chill them from exercising their right to speak about matters of “public concern.”

Carroll’s attorney Roberta Kaplan told Bloomberg that the filing was a “transparent” move to delay the case.


A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.