WASHINGTON (CN) — A Washington appellate court threw its hands up Thursday over a defamation case against Donald Trump, volleying the lawsuit back to the Second Circuit to answer unprecedented questions about when it’s appropriate for the Justice Department to step in as a proxy defendant.
The ruling added another coil to the tangle of litigation stemming from allegations that Trump raped the writer E. Jean Carroll in the mid-1990s. After Carroll went public with her story in 2019, Trump denied they two had ever met and said he was not attracted to Carroll.
“I’ll say it with great respect: Number one, she’s not my type,” Trump said that summer. “Number two, it never happened. It never happened."
Those words formed the basis of Carroll’s lawsuit, held up since its 2019 filing with procedural delays, Thursday’s ruling marking the latest. At issue here is Trump’s request to have the U.S. Department of Justice take over for him as defendant in the case, since, he argues, he was acting as president when he denied Carroll’s claims.
Trump aims to take advantage of the Westfall Act, often used for federal employees like postal workers sued for car collisions that took place during work. The Second Circuit determined that the statute applies to the president, flipping a district court court finding.
What remains unclear is whether Trump was in fact acting in that capacity when he denied the sexual assault claim. Carroll argues that Trump’s comments went way beyond what was appropriate for a president to say, while Trump lawyers say their client clearly was a man at work, answering a direct question from the media on the White House lawn.
The case is over if it’s found that Trump was acting in his official role, since the federal government has sovereign immunity in defamation cases.
Asked to weigh in, the Washington court affirmed its precedents and clarified its position on the scope of employment in some cases, noting that “whether an employee was acting within the scope of employment is ordinarily a fact-intensive question for the factfinder.” But the court stopped there.
“In response to the part of the certified question requesting that we define the scope of employment of the President of the United States, we decline to do so,” the 52-page ruling states. “That is a fact-intensive question for the factfinder and cannot be resolved as a matter of law in either party’s favor on the record before us.”
Chief Judge Anna Blackburne-Rigsby signaled punting the case as a possible outcome, after guessing correctly that Trump’s attorney felt the case was being put to the wrong court.
“But we find ourselves all here, addressing these questions,” Blackburne-Rigsby said, “and so we are also grappling with what our appropriate role is here.”
Carroll’s attorney declined to comment on the ruling.
Trump’s attorney Alina Habba said she feels good about her client’s chances at the next step.
"Now that the D.C Court of Appeals has clarified the certified question before it, we are confident that the Second Circuit will rule in President Trump's favor and dismiss Ms. Carroll's case in its entirety,” Habba said in an emailed statement.
Regardless of the outcome a separate set of claims over the same allegation are set to head to trial later this month. Carroll sued Trump a second time last year under a New York law that allows survivors a one-year window to file time-barred claims. She also added another defamation count for Trump’s denial of the story after leaving office.
Trump hopes that date will be pushed back. His attorneys on Tuesday asked U.S. District Judge Lewis Kaplan — who is overseeing both cases but decided not to consolidate them — to delay trial by a month to allow a “cooling off” period from the media frenzy that surrounded Trump’s unrelated and unprecedented criminal arraignment in another lower Manhattan courthouse.
The former president raised another concern Thursday after it came to light that Carroll’s firm has sourced funding for her case — it's unclear how much, and the firm maintains that Carroll's is a contingency case — from a nonprofit called American Future Republic, which is backed primarily by billionaire LinkedIn founder Reid Hoffman. Trump’s attorneys called to reopen discovery to explore issues of bias, noting that Hoffman is a major Democratic donor and critic of Trump.
Judge Kaplan later on Thursday ordered new examination of some materials without saying whether they will be allowed at trial.
"The question whether and when plaintiff or her counsel have obtained financial support in this action has nothing directly to do with the ultimate merits of the case," Kaplan wrote in a docket note. "Although I do not now decide the question, it perhaps might prove relevant to the question of plaintiff's credibility, in view of the deposition testimony referred to above."
The judge ordered Carroll to send Trump documents that prove her position that funding from the nonprofit came in or after mid-2020, well after the lawsuit was filed, as well as any documents showing Carroll's knowledge of the funding. Trump may also depose Carroll for up to an hour, only about her knowledge of the funding at the earlier deposition and at present.
Carroll’s legal team called Trump's latest motions clear delay tactics and noted that Trump himself had ginned up much of the media attention he then complained about.
“One thing is clear,” Carroll’s attorney Roberta Kaplan wrote Thursday in a letter to the court. “Trump will stop at nothing to avoid having a jury hear Carroll’s claims.”
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