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.





