The Twitterverse is aflame with indignation at the news that the Department of Justice has filed a brief in the case of E. Jean Carroll v Donald J. Trump “in his personal capacity.” DOJ’s brief argues that, based on federal statutory law and multiple court precedents, Trump’s statements that Carroll was lying when she claimed he raped her, while offensive and potentially defamatory, were “within the scope of his employment as President” and thus the United States of America in its sovereign capacity may, indeed must, replace Trump as defendant and Trump’s attorneys as his representatives in the litigation.

This was a genuinely shocking development, especially considering that neither Trump nor any of his co-conspirators have been brought to justice in any way in connection with the January 6 assault on the Capitol that he inspired and directed, nor for any of the acts of obstruction of justice that were described in detail in the Mueller Report. While it’s obviously true that many of the mob that attacked the Capitol have been arrested and charged with various offenses, and others are being hunted as we write, the suspicion is that there were many senior Trump aides, likely including some members of Congress, who were guilty of conspiring to cause the insurrection/sedition of January 6. Many people around the country are outraged that the DOJ would undertake to defend Trump in the Carroll defamation case.

I am among those outraged Americans. At the same time, I am, or was, a licensed attorney and, therefore, had to take the time to read the cases cited by DOJ to try to understand the legal basis for its stunning decision to take over Trump’s defense. I have completed my review of DOJ’s brief and the cases cited and will now set out my views about them.

Preliminary Statement

The position outlined by DOJ amounts to a per se position. That is to say, given DOJ’s articulation of its theory of the case, it is almost impossible to think of a situation in which a sitting president, accused of defamation, responds with, we’ll assume, outright lies constituting blatant overt defamation of the accuser and such responses would not be determined to be within the scope of the president’s employment by the federal government.

I will try to explain why this is wrong. Considerable simplification is necessary. You can read DOJ’s brief in full here: https://bit.ly/3g2Vfnr

Background to DOJ’s Analysis

Under the  federal statute known as the Westfall Act [technically, the Federal Employees Liability Reform and Tort Compensation Act of 1988] bars tort claims against government employees acting within the scope of their employment. Instead, such claims must be brought under the Federal Tort Claims Act, but the catch is that unless the government consents to be sued, defamation cases are barred and, in effect, even though the plaintiff may have been defamed, there is no legal remedy. The District Court succinctly explained it this way:

the FTCA specifically excepts libel and slander cases from the United States’s consent to be sued. Thus, if this really is a suit against the United States, it is one to which the United States seemingly has not waived its sovereign immunity.

As the District Court also noted in the Carroll case,

Because the Westfall Act operates where a lawsuit could have been brought against the United States under the FTCA, the statutes share the same threshold requirements. Thus, in order for the Westfall Act to apply, the defendant must be an “employee of the Government” who was acting within the scope of his or her employment.

Because the goal of all this is to protect federal employees who are claimed to have committed torts  (civil wrongs, such as libel) from having to defend suits when the employees were acting with the scope of their employment, the Attorney General may certify that challenged conduct was indeed within the scope of employment and, therefore, the United States becomes the defendant in lieu of the employee originally sued and the DOJ takes over the defense.

Certifications can be challenged, however, and that is what has happened in the Carroll case. Under the Westfall Act, the question of “scope of employment” is decided according to the law of the state with the closest connection to the events in question.

You can read the District Court opinion here: https://bit.ly/3cs3Huw

Facts in the Carroll case

Carroll claimed in a book that was reported in New York Magazine that Donald Trump raped her in a department store in the mid-1990s. About two hours after the magazine published, Trump, on his own initiative, issued a statement denying that he knew Carroll, asserting that the report was false and designed to sell books. Shortly thereafter, in response to a press inquiry and in an interview, Trump expounded at length on his position that Carroll had fabricated the entire story.

Carroll sued Trump in New York state court, claiming defamation. After ten months of litigation, DOJ decided to step in, removed the case to federal court and certified the scope of employment necessary to invoke the Westfall Act.

DOJ’s Argument

To some degree, DOJ’s framing of the issues stacks the deck in its favor. That is what litigants do when they file briefs arguing for their preferred outcome. We should not, therefore, be shocked that DOJ did that here. There are, however, fair questions to be raised about the approach DOJ took in its analysis of the legal issues.

I will not discuss the threshold question whether the President of the United States is a “employee of the federal government.” Carroll argued the negative; DOJ strongly disagreed and, I believe, has the better argument on that question. A large part of its brief was devoted to that issue.

The critical issue remains whether Trump’s unilateral declaration that Carroll was lying about the alleged rape was within the scope of Trump’s employment as president.

DOJ describes the key question as “whether a high-ranking elected official subject to close public scrutiny acts within the scope of employment when making public statements denying and responding to serious accusations.” And,

The FTCA and Westfall Act, and the common law tort principles that they incorporate, recognize that in some instances employees will commit torts—including intentional torts—for which the employer bears responsibility, even when the employer disapproves of or expressly forbids the tortious conduct. Conduct that falls within the scope of employment for purposes of the Westfall Act thus need not be authorized or acceptable. Indeed, the premise of a scope-of-employment analysis is that a tort may have been committed. Under the Westfall Act, even conduct involving “serious criminality,” … or which runs “contrary to the national security of the United States,” … may fall within the scope of employment. In making and defending a Westfall Act certification, therefore, the Department of Justice is not endorsing the allegedly tortious conduct or representing that it actually furthered the interests of the United States….[case cites omitted]

… the question in a Westfall Act case is whether the general type of conduct at issue comes within the scope of employment. Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.

Stated differently,

The key inquiry is whether the conduct at issue is of the type an official generally performs, rather than whether the particular allegedly tortious act was improper.

And,

in undertaking a scope-of-employment inquiry, a court must look to “the type of act” the defendant took, rather than its “wrongful character.”

And,

What matters is whether the underlying activity itself was part of the employee’s duties.

DOJ then makes the great leap, sliding past the fact, not disputed to my knowledge, that Trump initiated his public attack on Carroll in the first instance. It was not in response to media inquiries but occurred almost immediately after the New York Magazine publication of her book excerpt. That is why I put bold-face type on that fact earlier. DOJ:

When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President. Likewise, when Mr. Trump responded to those questions with denials of wrongdoing made through the White House press office or in statements to reporters in the Oval Office and on the White House lawn, he acted within the scope of his office.

In Does 1-10 v Haaland (973 F3d 591) the statements made by the Congressman were “intended to convey the politicians’ views on matters of public interest to their constituents,” namely an incident at Lincoln Memorial between students and a Native American veteran. Clearly that is not what the Trump-Carroll dispute involves.

In Operation Rescue National v. U.S. (975 F. Supp. 92), “Senator Kennedy said, in part, that the proposed legislation was needed because “we have a national organization like Operation Rescue has as a matter of national policy firebombing and even murder …” The District Court found that that Kennedy’s comments were within the scope of employment because,

Senator Kennedy was providing political leadership and a basis for voters to judge his performance in office—two activities that public officials are expected, and should be encouraged, to perform,”…. In this sense, the Senator’s employer was his constituents and he served them by fully informing them of his views and working to pass legislation he believed would benefit them.. [italics added]

The Operation Rescue analysis is particularly interesting. The court flipped the employment relationship to one in which Kennedy was working for his constituents. If so, the “scope of employment” analysis that would substitute the United States for Kennedy should have failed.

The bottom line is that the DOJ analysis leading to its decision to replace Trump with the United States government is pedestrian. It fails to account for important differences in the Trump case from the precedents cited. And, worse, it creates a nearly per se rule that immunizes all future presidents from slanderous/defamatory statements about disputed matters without regard to the time when those events occurred. DOJ’s analysis is a license for a sitting president to defame people he may have harmed long before taking office. Trump accused Carroll of lying on three separate occasions at least. Under DOJ’s interpretation of the Westfall Act, he could have spent hours more on national television at his rallies and in other public statements attacking her credibility and, after all that abuse, she would have no effective remedy. The United States has not waived sovereign immunity for defamation and there is nothing to suggest that it intends to do so in the future.

Admittedly, the case law opens the door to this approach, but DOJ did not have to walk through it. Given Trump’s history of grifting at the expense of the government, and thus of taxpayers, it is painful to see the Department of Justice bend over backwards to continue putting resources at his disposal while giving him, and future presidents, an essentially free hand.

The legal precedents that make this possible should be closely re-examined. The Westfall Act should be amended to put at least some fences around permissible expression by a sitting president who already has enormous advantages in the fight for public opinion. What happened to Ms. Carroll, regardless of the truth of the underlying allegations, should not be repeated. Republicans would, no doubt, oppose any legislation that might prevent Trump from doing what he does. The only hope for rectifying this miscarriage of justice is to replace more Republicans with Democrats in Congress.