Breaking news! DOJ won’t consider Trump immune in E. Jean Carroll defamation lawsuit
Is the President an Employee of the Government?
This case arose when President Trump, during his presidency, denied rape allegations and made potentially defamatory remarks about Ms. Carroll, the accuser. It was too late to sue over the rape, so Ms. Carroll, a journalist, sued for defamation. Her claim depends on staying outside of the FTCA, which excludes defamation. Thus she must either show that President Trump was outside of his course and scope as president or that he is not an employee of the government and thus not covered by the FTCA and the Westfall Act.
While the answer seems obvious, a federal district court ruled that the definition of employee in the Westfall Act excludes the President. To some extent this was based on what we know from adlaw – the President’s office is not an agency and thus the President does not work for an agency. The district, reading the Westfall Act narrowly, found that the President was not on the list of specific examples of government employees and thus refused the motion by the Attorney General to substitute the government as plaintiff. (Federal court order denying the motion to substitute the United States as the defendant)
The Second Circuit panel found that the President is an employee, but found that did not end the inquiry. The government can only be substituted for the defendant if the defendant is within the course and scope of employment. That is a tort law standard and is thus determined by the law of the state where the tort occurred. In this case, the President’s statements were made in Washington DC, and thus it depended on DC tort law. The Second Circuit certified a question to the DC Court of Appeals on the standard for course and scope of employment. The DC Court answered that it is a case-by-case factual inquiry. Based on this answer, the Second Circuit was unable to resolve the course and scope question. It remanded the case to the DC court to proceed with the factual inquiry. If the DC court finds that the defamatory comments were not in the course and scope of the President’s job, the case will proceed to trial. (Remand order – E. Jean Carroll v. Donald J. Trump)
Subsequent to this lawsuit, NY passed a law creating a one-year window to file old sexual assault and rape cases that were outside the statute of limitations. Carroll filed a sexual assault case against President Trump. She won before the jury: Jury finds Donald Trump sexually abused E. Jean Carroll in civil case, awards her $5 million
The next legal step will be the DC Court’s determination of whether defamatory comments are within the course and scope of the job of the President as part of the expected political give and take. This will likely be decided early fall. If the actions are found to be outside the course and scope of employment, it will allow the first tort claims against a President for actions taken in office. (The claims against President Clinton that were litigated during this time in office arose before he was elected.)
Resources
These are optional but are available if you want to look deeper into the issues.
Video – Is the President an Employee of the Government?
Video analyzing the court’s arguments and the DOJ brief to the 2nd Circuit on whether the President is an employee.
Biden Justice Department defends Trump in suit over rape denial
Carroll v. Trump – state defamation case
Plaintiff Carroll’s blog on the case (Carroll is a journalist)