In June 2019, E. Jean Carroll revealed that former President Donald J. Trump had sexually assaulted her decades earlier. Trump denied it, saying he did not know who Carroll was and had never met her. But he did not stop there. He launched a series of vicious, personal attacks. He implied that she was too ugly to rape; that she had falsely accused other men of sexual assault; and that she had invented her story for money, or to sell books, or to advance a political plot. None of this was true. Trump knew that he had assaulted Carroll. He knew who she was. And he knew what he was doing when he went on a defamation rampage designed to crush her— to punish and retaliate against her—for daring to reveal his decades-old crime.
Faced with this staggering onslaught, Carroll sought relief in court and sued Trump for defamation. Her case proceeded in New York state court for ten months. Trump did everything he could to stall, but his efforts ultimately failed. Just as the parties were about to engage in merits discovery, the White House prevailed upon the Department of Justice (DOJ) to intercede. Following a certification under the Westfall Act, 28 U.S.C. § 2679(d), DOJ lawyers removed the case to federal court and sought to substitute the United States as the defendant. They took the position that Trump was just doing his job—i.e., that he was acting within the scope of his employment—when he repeatedly slandered a private citizen who was no longer willing to hide the fact that he had raped her long before taking office.
On two separate grounds, Judge Kaplan denied DOJ’s motion to substitute. He first held that the statute invoked by DOJ in support of substitution—the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, as amended by the Westfall Act—does not apply to the President. That conclusion is compelled by the FTCA’s text and structure, as well as a host of constitutional, legislative, and judicial authorities, all of which confirm that the FTCA does not apply to the President. On appeal, DOJ (joined by Trump) seeks to show otherwise, but their arguments make a mess of the statute and offend settled separation-of-powers principles.
In the alternative, Judge Kaplan concluded Trump was not acting within the scope of his employment when he defamed Carroll. This commonsense conclusion follows directly from the evidence before the Court and from longstanding principles of respondeat superior liability. On appeal, DOJ and Trump offer no basis to disturb that finding. Indeed, there is almost nothing in their briefs that discusses the facts at all. Instead, they urge the Court to adopt a new rule that would create categorical immunity for any federal official who defames anyone while speaking to the press or responding to perceived critics. That rule is both wrong and dangerous, and this Court should reject Appellants’ effort to avoid answering for Trump’s conduct.
“Public office does not carry with it a license to defame at will, for even the highest officers exist to serve the public, not to denigrate its members.” Clark v. McGee, 49 N.Y.2d 613, 618-19 (1980). If accepted, Appellants’ extreme position would distort precedent, dishonor the Office of the Presidency, and give succor to the view that our most powerful political leaders stand entirely above the law. This Court should therefore affirm the denial of DOJ’s motion to substitute.
Statement of the issues:
1. Is the President an “employee of the government” as that term is defined in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671?
2. Assuming the President is an “employee of the government” under the FTCA, did Donald J. Trump act within the scope of his employment when he subjected E. Jean Carroll to willful, outrageous defamatory attacks in retaliation for revealing that he had sexually assaulted her decades before he was elected President?
Brief for Plaintiff-Appellee, Carroll v. Trump, No. 20-3977 (2nd Cir. Apr. 16, 2021).