(Reuters) - The Justice Department filed a motion Tuesday to substitute the United States as the defendant in a defamation case by former Elle magazine advice columnist E. Jean Carroll against President Donald Trump. Carroll, who alleged in a memoir that Trump raped her in a department store dressing room in the 1990s, sued the president in New York state court in 2019, after Trump vehemently refuted the incident in a press statement and two subsequent interviews.
DOJ removed Carroll’s year-old, state-court case to federal court in Manhattan under the Westfall Act, a 1988 law that allows the Justice Department to defend tort claims against government employees for actions arising from their official duties. President Trump, according to the motion, was “acting within the scope of his office as President of the United States” when he denied Carroll’s rape allegations, so the U.S. is the proper defendant in the suit.
Carroll’s lawyer, Robbie Kaplan of Kaplan Hecker & Fink, in an email statement called the government’s argument “shocking.” She noted that Trump was facing discovery deadlines, including a deposition and production of a DNA sample, in the state-court suit. “Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent and shows even more starkly how far he is willing to go to prevent the truth from coming out.”
Attorney General William Barr defended DOJ’s action at a press conference Wednesday. “This was a normal application of the law. The law is clear. It is done frequently,” Barr said.
Can Kaplan and her client block DOJ from taking over the defense of Carroll’s suit? I put that question to four Westfall Act experts on Wednesday, three law professors and a private lawyer who has litigated Westfall Act cases. They suggested two potential avenues of attack on DOJ’s motion: an argument that President Trump is not a government employee and an argument that Trump’s allegedly defamatory statements were not made in his official capacity as the president of the United States.
The Justice Department declined to comment in response to my query on potential legal arguments against its motion.
Before we get to the merits of DOJ’s motion, it’s important to note both that the Justice Department’s action Wednesday was quite unusual and that it gives the president a big advantage regardless of whether DOJ is ultimately permitted to take over the defense of Carroll’s case. Typically, according to Gregory Sisk of the University of St. Thomas School of Law, the Justice Department acts quickly to substitute the United States as defendant in tort suits against federal government employees. In the Carroll case, DOJ waited nearly a year – during which Carroll won significant procedural rulings in state court -- to certify that President Trump was acting in his official capacity when he denied Carroll’s allegations and move the case to federal court.
Sisk said that DOJ Westfall Act motions are occasionally delayed when it’s not immediately clear from a complaint that a government employee’s actions arose from her official duties – but said there’s no such justification for the lag time in the Carroll case. “It certainly is strange,” Sisk said. “It does smack of political (considerations).”
The Carroll case was assigned Wednesday to U.S. District Judge Lewis Kaplan of Manhattan, who, Sisk said, can consider DOJ’s motivations if, as expected, Carroll counsel Kaplan challenges DOJ’s certification that President Trump was acting in his official capacity. But now that the Justice Department has removed the case to federal court, said Sisk and law professor Aziz Huq of the University of Chicago, the state judge who issued rulings favorable to Carroll is out of the picture. Even if Judge Kaplan ultimately determines that the president, and not the U.S., is the proper defendant, the case will effectively be reset before the federal judge, wiping out the state judge’s decisions.
“Trump gets a new bite at the apple, which is quite important,” said Huq.
If Judge Kaplan decides that the U.S. is the proper defendant, Carroll’s claim for defamation is doomed, according to the law professors and Bradley Moss of the Mark Zaid law firm, who has litigated Westfall Act cases. Broadly speaking, federal employees are immune from defamation claims arising from their official actions, as Chicago law professor Huq wrote in a 2017 column for The New York Times. Just last week, for instance, the 6th U.S. Circuit Court of Appeals affirmed the dismissal (2020 WL 5242402 ) of defamation claims against Senator Elizabeth Warren and Congresswoman Debra Haaland by students at Kentucky’s Covington Catholic High School who were part of a group that surrounded a Native American activist at the National Mall in 2019. The appeals court agreed that Warren and Haaland were immune because their allegedly defamatory statements were made within the scope of their employment as federal officials.
There’s no doubt, based on several cases cited in that 6th Circuit decision, that members of Congress are federal employees for the purposes of the Westfall Act. Case law holds the same for cabinet secretaries. But is the president a government employee?
Perhaps not, said law professor Stephen Vladeck of the University of Texas, who said the Trump administration has asserted arguments in other contexts that laws governing federal employees do not encompass the president. But other experts were skeptical of that avenue of attack on DOJ’s motion. Sisk said that Trump draws a government salary and is therefore a government employee. (The president donates his salary back to the government.)
And there is precedent for the proposition that DOJ can swap in for the president as defendant in a tort suit. Moss pointed out that the Justice Department previously moved under the Westfall Act to be substituted as the defendants in a 2019 Texas tort suit against President Trump. In July, a federal magistrate in Dallas agreed with DOJ’s arguments that the case should be dismissed (2020 WL 4721291).
Chicago professor Huq said Carroll might have a stronger argument that President Trump was not speaking in his official capacity when he denied her rape allegations. Most precedent immunizing federal officials from defamation claims, he said, involves statements arising from issues connected directly to officials’ public duties. The Carroll case is “quite distinctive,” he said. “There is no plausible nexus between the duty of the president … and the statements in question.”
Carroll’s lawyers can argue that the president’s statements addressed a private event that occurred long before he took office, Sisk said, although he predicted that DOJ will counter that the presidency is so engrossing a job that any distraction affects his official duties.
Generally speaking, said Vladeck, courts have given broad interpretations to the scope of federal employees’ work. (Technically, judges in Westfall Act cases apply the law of the jurisdiction in which the allegedly defamatory statement was made.) In 2006’s Council on American Islamic Relations v. Ballenger (444 F.3d 659), for instance, the D.C. Circuit found that former Congressman Cass Ballenger acted within the scope of his employment when he discussed his marital status with a reporter because “there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.” The appeals court affirmed DOJ’s motion to dismiss the suit.
Moss, who represented U.S. Marine Frank Wuterich in a defamation suit against former Congressman John Murtha, is all too familiar with how broadly courts have construed the scope of federal officials’ duties in Westfall Act cases. The trial judge in the Wuterich case initially denied the Justice Department’s Westfall Act certification that Murtha acted in his official capacity, ordering discovery on Murtha’s motives for accusing Wuterich and others of misconduct in Iraq. The D.C. Circuit overturned the discovery order, finding that Murtha had acted in the scope of his job, and ruled that the U.S. be substituted as the defendant in Wuterich’s case.
Moss predicted in an email to me that such precedent will likely spell the end of Carroll’s case. “Responding to the press to defend himself is part of the president’s job,” he said. “All that matters is whether the remarks – no matter what the substance of the actual words – were done in furtherance of his responsibilities.”
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