MANHATTAN (CN) — Punting the final decision to an appeals court in Washington, the Second Circuit left the door open Tuesday for the U.S. government to take the place of former President Donald Trump in litigation brought by a woman who says Trump raped her.
E. Jean Carroll, who used to be a columnist at Elle magazine, first went public with her allegations while Trump was still in office. She wrote a book alleging that Trump raped her in a dressing room at Bergdorf Goodman in the 1990s, then filed suit in fall 2019 after Trump denied having ever met Carroll and depicted her accusations as part of a political conspiracy.
“I’ll say it with great respect: Number one, she’s not my type,” Trump had said that summer. “Number two, it never happened. It never happened.”
Despite there being photographs that show Carroll and Trump together, Trump argues that he had no choice but to respond publicly to the allegations. Because he claims to have done so in his official capacity, moreover, Trump says the 1988 Westfall Act, which falls under the Federal Tort Claims Act, allows the federal government to replace him as the defendant.
The Second Circuit in turn considered two questions: whether the act applies to the position of president, and whether Trump was in fact on the job when he made the comments about Carroll.
Reversing a district court ruling on the first issue, the Second Circuit decided 2-1 Tuesday that a U.S. president is indeed a government employee as defined by Westfall.
“For, as Trump points out in his brief, the President is a government employee in the most basic sense of the term: He renders service to his employer, the United States government, in exchange for a salary and other job-related benefits,” U.S. Circuit Judge Guido Calabresi wrote in the 57-page majority opinion.
U.S. Circuit Judge Denny Chin dissented.
“The hallmark of whether someone is an employee is the extent to which another controls him,” wrote Chin, an Obama appointee. “Congress surely did not have the President in mind when it passed the Westfall Act, a statute intended to protect low-level, rank-and-file government employees and not the chief executive of the country who was already absolutely immune from damages for official acts.”
The Second Circuit panel says that the second question, whether Trump’s comments were part of a presidential act, is up to the D.C. Court of Appeals.
Should that court determine that Trump is in this case protected by Westfall, Carroll’s defamation suit cannot go forward since the U.S. government has absolute immunity from defamation lawsuits.
“The [Federal Tort Claims Act], expressly, does not waive the sovereign immunity of the United States for the tort of defamation,” the Second Circuit opinion states. “So substituting the United States in place of Trump means the failure of Carroll’s defamation lawsuit.”
As the judges acknowledged during oral arguments last December, the decision will impact the U.S. government’s ability to stand in as a defendant for future U.S. presidents.
Getting to the case’s significance, Calabresi, a Clinton appointee, tacked on his own concurring opinion. He hailed the case as important because courts have not previously weighed in on when a government employee is on the job, and doing so opens the door to inconsistent meanings — perhaps as a means to hold someone liable.
“The same term ‘scope of employment’ would be given different, inconsistent meanings, solely because of the different liability result of applying a consistent meaning. And that is certainly troublesome,” Calabresi wrote. “But courts may nonetheless be tempted to do this, if the reason their jurisdiction had broadened the meaning of scope of employment was, in part, to achieve a liability-placing result.”
Citing his 70 years as a torts scholar, Calabresi noted that the “ultimate decision will affect ordinary people, parties who are neither presidents nor controversial.”
U.S. Circuit Judge William Nardini, appointed by Trump himself, completed the panel.
Trump attorney Alina Habba pointed to the precedent set by Tuesday’s ruling in celebrating the opinion.
“This decision will protect the ability of all future Presidents to effectively govern without hindrance,” Habba said in a statement. “We are confident that the D.C. Court of Appeals will find that our client was acting within the scope of his employment when properly repudiating Ms. Carroll’s allegations.”
Carroll’s attorney Robbie Kaplan said she is confident the D.C. Court of Appeals will rule in Carroll’s favor.
"As Judge Chin, the only Second Circuit judge to reach the merits, explained in his powerful opinion, Donald Trump was not acting within the scope of his duties as President when he defamed our client,” Kaplan wrote in a statement, “because he was not serving any purpose of the federal government and because the comment ‘she's not my type’ is not something one would expect the President of the United States to say in the course of his duties.”
In addition to the lawsuit, Carroll plans to file a claim against Trump under the Adult Survivor's Act, as soon as the law goes into effect on November 24. The two suits overlap enough that Carroll’s team wants them to be taken together when the already-pending lawsuit goes to trial next year.
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