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Rape accuser suing Trump for defamation slams his bid for DOJ proxy

To win a reversal, the former president must show that he was acting within the scope of his office when he said E. Jean Carroll is not his type, sexually.

WASHINGTON (CN) — Former President Donald Trump took care to say it with great respect, but did he say it as head of state? The D.C. Court of Appeals became the latest Tuesday to ponder what, exactly, was in Trump's head when he denied being physically attracted to the woman accusing him of rape. 

“I’ll say it with great respect: Number one, she’s not my type,” Trump had said of the writer E. Jean Carroll in the summer of 2019. “Number two, it never happened. It never happened."

Carroll at the time had just published a book detailing her claims that Trump raped her in the dressing room of the storied Bergdorf Goodman department store decades earlier. The statute of limitations had long since elapsed for Carroll to sue Trump for the assault, but his insistence that he had never met Carroll, as well as his implied disparagement of her looks, opened the door for a defamation claim in New York.

Though the lawsuit has rolled forward with both Trump and Carroll sitting for depositions, a major hangup remains in the question of whether the United States government can sit in for Trump as the defendant, a common recourse when federal employees get sued, but one available to Trump only if it can be determined that he was acting as president when he made the remarks in question. 

If the answer is yes, and the Department of Justice assumes Trump’s role, the case is over, as the federal government has sovereign immunity in defamation cases. 

For two and a half hours on Tuesday, a panel of judges probed not only their role in clarifying or ruling by state law in federal proceedings, but also whether there are enough facts, as the parties argue there are, to answer the central question: Trump’s intention. 

While Carroll argues that Trump’s comments went way beyond what was appropriate for a president to say, Trump lawyers say their client clearly was a man at work, answering a direct question from the media on the White House lawn. 

“This was thrust upon him and he was responding to press in his job,” said Trump’s attorney Alina Habba with the firm Habba Madaio & Associates. 

“My understanding would be that intent is not relevant as long as you’re responding within the scope of your employment.” 

Speaking to what remains unknown with only the facts from Carroll’s complaint in-hand, Judge Joshua Deahl posed a hypothetical in both directions. What if it were to come out during discovery that Trump’s advisers had urged him not to respond to Carroll’s allegations as he did, but he defied that counsel in order to go after Carroll publicly? 

Conversely, it could emerge that Trump’s response came at the guidance of other officials.

“What if the record revealed in this case — the record that we don’t have yet — that Mr. Trump, all of his advisers say to him, ‘You have to nip this in the bud. The only way you’re going to be able to govern effectively is to bury this immediately, and the only way to do that … is to discredit Ms. Carroll?’” 

Carroll’s attorney Joshua Matz seemed primed to respond.

“If we had that record and there were say one further fact — which is that Mr. Trump said, ‘Yeah, you’re right, I’m going to go do it for those reasons' — I’d pack my hat and go home,” Matz said, adding, “but that is not this case.”  

Trump and the Justice Department made a “strategic choice,” Matz said, not to offer an affidavit or other facts in their favor. 

The case wound up in front of the D.C. Court of Appeals after the Second Circuit ruled that the office of president may have a government proxy option under the so-called Westfall Act, flipping a lower court finding. 

Without exploring the finer factual points, several judges suggested Tuesday, it may not be up to this court to close the book on whether Trump’s denial was part of his job. The court can instead clarify District of Columbia laws and punt the matter back to the Manhattan-based federal circuit. 

During Habba’s argument, Chief Judge Anna Blackburne-Rigsby guessed the attorney felt there had been another misstep. 

“I get the sense that you don’t feel you should be here in this court, addressing this question,” the judge said. 

“I don’t,” Habba interjected with a laugh. 

“But we find ourselves all here, addressing these questions,” Blackburne-Rigsby continued, “and so we are also grappling with what our appropriate role is here.” 

Back in Manhattan on Monday, the discussion of discovery arose, too, when U.S. District Judge Lewis Kaplan issued — then vacated — an order to unseal more than 30 pages of Trump’s deposition, sealed in their entirety in a previous filing. Trump’s attorneys, after successfully challenging the transcript release, are due to address the matter in writing this week. 

A representative for Carroll declined to comment on the proceedings, and Habba did not return a request for comment.

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