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In suit with rape accuser, Trump tries again for DOJ proxy

The Second Circuit will consider whether the former president was using the power of his office when he insinuated that the woman he allegedly raped in the 1990s is not attractive enough for him.

MANHATTAN (CN) — Acknowledging that their decision will impact the U.S. government’s ability to stand in as a defendant for future U.S. presidents, an appeals court heard arguments Friday in a federal defamation case against former President Donald Trump. 

The suit stems from Trump's denial of an account by writer E. Jean Carroll that Trump raped her in a dressing room at Bergdorf Goodman in the 1990s.

Despite there being photographs that show them together, Trump denies having ever met Carroll and depicts her accusations as part of a political conspiracy and a scheme to sell books. “I’ll say it with great respect: Number one, she’s not my type,” Trump said on June 24, 2019. “Number two, it never happened. It never happened.”  

Carroll sued Trump the following November, and the case is headed to trial after a federal judge refused last year to let the Department of Justice stand in for Trump as the defendant.

Arguing Friday before the Second Circuit, Trump attorney Alina Habba claimed that Trump had no choice but to respond after Carroll published her account of the assault in a book and an article in The Cut. 

“She made it public. She was on the aggressor side,” Habba said. 

Whether he’s in Minnesota, New York or sitting in the Oval Office, a president is “always in that position,” she argued. 

“When the press asks him a question about a story that would go to his fitness to sit, he needs to respond,” said Habba, who called Carroll’s suit “meritless” and threatening to presidential precedent. 

“This is not about being a Democrat or a Republican. It is solely to protect the presidency as an institution. And that is why I think this case is important,” Habba said. “If affirmed, future presidents will be needlessly hindered by frivolous lawsuits.” 

The three-judge appellate panel’s decision will have to test the application of two federal statutes. The first is the Federal Tort Claims Act, a law passed in 1946 to make it easier for victims to get relief when suing employees of the federal government. 

The second is the Westfall Act of 1988, which Trump attorneys argued in their brief clarified that the president is covered by the earlier law. 

The idea behind Westfall is that, when a federal employee wrongs someone, “the government pays, and the government disciplines,” noted U.S. Circuit Judge Guido Calabresi. “And there’s nobody to discipline the government.” 

Habba disagreed. “If you look at President Trump’s history, he tends to be disciplined quite often,” she said. 

U.S. Circuit Judge Denny Chin questioned how those comments related to Trump’s official role. 

“Who is he serving when he says something like ‘she’s not my type?’” asked Chin, an Obama appointee. “It's one thing if he said ‘I didn’t do it,’ but he goes way beyond that.” 

“It’s content that you’re discussing,” Habba replied, “not context.” 

“Did he need to say, ‘she’s not my type?’” Chin pressed. 

“That is not really the critical question,” Habba said. 

Mark R. Freeman, appellate staff attorney from the U.S. Department of Justice, took a more critical stance on Trump’s comments about Carroll, calling them “crude and offensive.” 

“I’m not here to justify those comments,” Freeman said. “I’m here because any president facing a public accusation of this kind … would feel obliged to answer questions from the public. Answer questions from the media.” 

When it comes to an intentional tort, Carroll’s attorney Joshua Matz argued, “it’s not enough that he was on duty.”

“An improper purpose removes you from the scope of employment,” said Matz, of the New York firm Kaplan Hecker & Fink. 

The Clinton-appointed Judge Calabresi asked whether, if that’s true, every case like this would require “an examination of the person’s mind” to determine whether they were acting under the scope of their employment. “That’s a mighty broad statement.” 

Calabresi also repeatedly returned to a point Freeman argued in his brief: That ultimately the District of Columbia should decide the question of scope. 

Because the employment relationship between a president and the United States is centered in the District of Columbia, Freeman wrote, “that jurisdiction’s respondeat superior law naturally applies.”

Calabresi said it “probably is likely” that Freeman is correct. “I want to know what the law decides, whether it was in the scope of employment or not.” 

Rounding out the three-judge panel was William Nardini, a Trump appointee. 

In an email to Courthouse News, Matz reiterated a point made in court: “Now more than ever, it is vital to affirm that no public official can place their private wrongs above the law.” 

Carroll meanwhile called on the Second Circuit to ensure that Trump’s “dangerous strategy” is not solidified as legal precedent. 

“In no world was Donald Trump upholding the Office of the Presidency when he claimed I was ‘not his type’ and called me a liar after I came forward as a survivor of sexual assault at his hands,” Carroll said in a statement. “His comments were personal attacks meant to punish me for daring to speak the truth — just as so many other powerful men have sought to crush and re-traumatize women who reveal their sexual misconduct.”

Habba pointed to the question of precedent again in an emailed statement. 

“It is imperative that a President be able to deny false accusations against him, like those raised by Ms. Carroll, without the fear of being dragged into frivolous lawsuits,” she wrote. “We firmly believe the Second Circuit will recognize the importance of the protections afforded under the Westfall Act to past, present and future presidents.”

Friday’s arguments followed Trump’s latest attempt earlier in the week to dismiss the suit in the Southern District of New York. His attorneys cited New York’s “anti-SLAPP” law, passed last year to prevent Strategic Lawsuits Against Public Participation, or powerful people using the legal system to swat down criticism. 

“In its revised form, the law is broadly intended to deter bad-faith actors from commencing and/or continuing vexatious or malicious lawsuits, particularly those designed to inhibit and individual’s ability to speak freely on matters of public concern,” Habba wrote in the 15-page motion. “Since that is precisely what has occurred in this instance, Defendant hereby seeks leave to amend his Answer to assert a counterclaim against the plaintiff, E. Jean Carroll … under the revised anti-SLAPP statute.” 

The Department of Justice declined to comment.

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