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A Judge Ruled The Justice Department Can’t Take Over Trump’s Defense Against E. Jean Carroll’s Defamation Lawsuit

The ruling means Trump must continue to personally defend against writer E. Jean Carroll’s claim that he lied when he denied raping her more than two decades ago.

Posted on October 27, 2020, at 10:30 a.m. ET

Kevin Lamarque / Reuters

WASHINGTON — The Justice Department cannot take over President Donald Trump’s private defense against a defamation lawsuit that accused him of lying when he denied raping the writer E. Jean Carroll more than two decades ago, a federal judge ruled Tuesday.

The decision from US District Judge Lewis Kaplan means that Trump will continue to have to personally fight Carroll’s claims in court. Kaplan wrote that the president didn’t fall under a law meant to shield federal government employees from being sued for doing their jobs, and that even if he did, his comments denying Carroll’s allegations weren’t “within the scope of his employment.”

“A comment about government action, public policy, or even an election is categorically different than a comment about an alleged sexual assault that took place roughly twenty years before the president took office. And the public’s reasons for being interested in these comments are different as well,” Kaplan wrote. “The president’s views on the former topics are interesting because they alert the public about what the government is up to. President Trump’s views on the plaintiff’s sexual assault allegation may be interesting to some, but they reveal nothing about the operation of government.”

A Justice Department spokesperson did not immediately return a request for comment. Carroll’s lawyer Roberta Kaplan (she is not related to the judge) released a statement saying they were looking forward to continuing to press Carroll’s claim against Trump.

“The simple truth is that President Trump defamed our client because she was brave enough to reveal that he had sexually assaulted her, and that brutal, personal attack cannot be attributed to the Office of the President,” Roberta Kaplan said.

Carroll last year accused Trump of raping her more than 20 years ago in the dressing room of a department store in New York. According to her court filings, Carroll said she told two friends about the alleged attack soon after it happened, but decided not to report it or go public at the time because she feared legal action from Trump, was worried no one would believe her, and blamed herself.

Trump denied that he had raped Carroll, claimed he’d never met her before, and accused her of making up the allegation to sell copies of her book. Carroll filed a defamation lawsuit against Trump in November 2019 in state court in New York.

Trump and a team of personal lawyers had been fighting Carroll’s lawsuit in state court for ten months when DOJ took the unusual step of stepping in and attempting to substitute the United States government as the defendant instead of Trump. The government argued that Trump was a federal government employee and that his conduct at issue — his public statements denying that he’d raped Carroll and that he’d ever met her — fell within the scope of that employment.

If DOJ prevailed, it would effectively end the case. The US government enjoys “sovereign immunity” against a range of civil claims, including libel, which means the judge would have to dismiss Carroll’s case.

The future of the lawsuit turned on whether Trump was a government employee for the purposes of the Federal Tort Claims Act, a law that dictates how lawsuits can, and cannot, proceed against federal employees over actions they take as part of their jobs. Even if Kaplan determined Trump did qualify as a government employee under the law, the judge then had to decide if Trump’s denials of Carroll’s accusations fell “within the scope” of that employment.

Kaplan concluded that the government failed on both fronts. The judge wrote that the president didn’t fall under any of the categories of government personnel that applied in a situation like this, including “officers or employees of any federal agency” or “persons acting on behalf of a federal agency in an official capacity.”

The US Supreme Court had previously made clear in a Nixon-era case that the president was entitled to absolute immunity against being sued for damages for official acts. Citing that case, Kaplan wrote it didn’t make sense that Congress would then extend the same legal protections to the president as other federal agency employees. Kaplan noted that if he adopted the government’s interpretation, it could “ignite a significant expansion” of legal exposure for the president, opening the door to a host of new civil lawsuits.

Even if Trump did qualify as a government employee, Kaplan wrote that he wasn’t acting as an employee of anyone or advancing an employer’s business interests when he made the public comments denying Carroll’s claims.

“No one gives him permission to speak. No one can require him to say, or not to say, anything at all. No one has the authority to cut him off. And the statements he makes, as well as the topics he discusses, are entirely of his own choosing,” Kaplan wrote. “No one even arguably directed or controlled President Trump when he commented on the plaintiff’s accusation, which had nothing to do with the official business of government, that he raped her decades before he took office. And no one had the ability to control him.”

The Justice Department argued that Carroll’s allegations implicated Trump’s fitness to serve as president, but Kaplan wrote that went “too far” in shielding the president from being liable for anything he said.

“Accepting it would mean that a president is free [to] defame anyone who criticizes his conduct or impugns his character — without adverse consequences to that president and no matter what injury he inflicts on the person defamed,” Kaplan wrote. “Indeed, the same would be true for many government officials, who plausibly could argue that criticism of their behavior or character, even if completely unrelated to their government employment, would undermine their ability to perform effectively while in office.”

Kaplan issued his 61-page opinion without hearing arguments from either side. The Justice Department and Carroll’s lawyer were set to present at a hearing last week, but it was canceled at the last minute after the DOJ lawyer was denied entry to the federal courthouse in Manhattan for failing to follow New York’s coronavirus quarantine rules after traveling from his home in Virginia. Kaplan gave the government a choice — to send a different lawyer to court, to argue by phone, or to cancel the hearing and have the judge decide based on the briefs alone. The government chose the last option.

As Kaplan pointed out in a footnote in Monday’s decision, the government’s choice meant the judge would not consider any new arguments that DOJ raised in a final brief filed shortly before the hearing. That brief had included more expansive arguments about why Trump qualified as a federal employee — but Kaplan wrote the government would still lose on that even if he did consider their new arguments.


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