MANHATTAN (CN) — Some two and a half years since he distinguished the president from other federal employees, refusing to let the Justice Department stand in for Donald Trump as it would for other other government workers, U.S. District Judge Lewis Kaplan is being asked again to decide the fate of a defamation lawsuit from a woman who says Trump raped her.
The Second Circuit returned the case to the Clinton appointee Friday with little fanfare Friday and the briefest of summaries on the game of courthouse hot potato that has plagued the lawsuit that magazine writer E. Jean Carroll brought against Trump in November 2019.
Trump was still president at the time and had brusquely denied allegations that Carroll had shared with the press for the first time: that back in the 1990s, Trump raped her in a dressing room of the department store Bergdorf Goodman.
“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 more recently has brought a civil suit against Trump under the New York Survivors Act, a new law that gives survivors of sexual assault a one-year look-back window for justice in the courts. The law was only passed last year, however, so Carroll sued Trump in 2019 for defamation rather than for the sexual assault itself.
Trump maneuvered to have the Justice Department replace him as defendant, but Judge Kaplan shot him down on the basis that the president of the United States cannot be considered an ordinary government employee under the Westfall Act. Though the Second Circuit vacated that order a year later, it left unanswered whether Trump was acting as president when he spoke blithely about his sexual preferences and claimed to have never even met Carroll.
The Second Circuit had attempted to have a Washington appeals court answer the latter question, but that court marked the case return-to-sender last week, rather anticlimactically.
“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 April 13 ruling notes. “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.”
Still appreciative of the D.C. Court of Appeals for what the opinion calls its "detailed and thorough response," the Second Circuit said Kaplan now has all the tools he needs to reconsider the matter.
“We now remand to the district court for further proceedings consistent with the detailed guidance provided by the D.C. Court of Appeals,” the unsigned ruling states.
If Kaplan agrees that government can stand in for Trump, it will effectively kill the case because the federal government has sovereign immunity in defamation disputes.
The development comes days before trial is set to begin in Carroll's other lawsuit with Trump.
Two witnesses in addition to Carroll are expected to describe being assaulted by the ex-president, decades apart, under circumstances the judge acknowledged are “far more similar than different in the important aspects.”
Jurors will also see the “Access Hollywood” tape that features Trump, who then was hosting “The Apprentice” reality TV show, bragging on a hot mic about aggressively pursuing women.
Kaplan is overseeing that case as well, having previously decided not to consolidate them.Follow @NinaPullano
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