So endeth the easy end, in a manner of speaking. Yesterday’s decision cuts off a convenient escape route for Donald Trump, who faces a defamation suit from E. Jean Carroll. She alleges that Trump sexually assaulted her decades ago in a department-store dressing room. Trump called her a liar, which prompted the lawsuit and gave Carroll a legal forum for her allegation, as the statute of limitations on the assault allegation had long since passed.
The decision by US District Court Judge Lewis Kaplan has nothing to do with the merits of Carroll’s case or any demerits of it, either. The Department of Justice attempted to use the Westfall Act to take over Trump’s defense and transfer it from New York to federal jurisdiction for the sole purpose of using Westfall to torpedo the suit. That would have provided a quick and convenient end to the case, theoretically speaking:
Myth: By DOJ removing the case from state to fed court, taxpayers are now on the hook for funding the Carroll defamation lawsuit.
Fact: Once the case shifts to fed court, it becomes an issue of sovereign immunity. Meaning, case over. No case, no cost. https://t.co/56OU3lkVVM
— Kerri Kupec DOJ (@KerriKupecDOJ) September 11, 2020
Nice try, Kaplan ruled Tuesday. The DoJ can move the suit to federal court and even represent Trump, but they can’t claim that Trump was a government “employee” or that his alleged defamatory comment was part of his official business as such. Therefore, the use sovereign immunity as a shield is out of reach:
U.S. District Court Judge Lewis Kaplan rejected the government’s motion to essentially step into Trump’s shoes as the defendant in the suit, brought by E. Jean Carroll. The move, if successful, would almost certainly have scuttled the litigation. …
DOJ sought to have the government substituted for Trump as defendant in the case based on two central arguments: that Trump is a federal employee, and that his statements denying Carroll’s allegations were made as part of his official job responsibilities. Those factors would trigger longstanding statutes that permit the Justice Department to intervene and defend against civil litigation.
But Judge Kaplan, an appointee of President Bill Clinton, rejected both arguments. The president, he said, is not a “federal employee” by any standard definition. And even if he were, Trump’s public rejection of Carroll’s claims could not be construed as part of his job responsibilities. In fact, as the constitutional head of government, Kaplan wrote, Trump cannot plausibly be seen as acting at any other person’s direction.
“No one gives him permission to speak. No one can require him to say, or not to say, anything at all. No one has the authority to cut him off. And the statements he makes, as well as the topics he discusses, are entirely of his own choosing,” the judge wrote. “No one even arguably directed or controlled President Trump when he commented on the plaintiff’s accusation, which had nothing to do with the official business of government, that he raped her decades before he took office. And no one had the ability to control him.”
In essence, Kaplan ruled, this means presidents are not “employees of the government” as defined in 28 USC 2671, so the Westfall Act is moot in this dispute. But even if presidents were covered in that definition, the Westfall Act covers disputes over official conduct by substituting the US sovereignty for which that employee acted in that incident. Trump wasn’t acting on behalf of the government, Kaplan points out, in speaking about a private dispute, and therefore the Westfall Act doesn’t apply in that sense either.
The DoJ can appeal this decision, and probably will, but their intervention has already raised some significant ethical questions. The DoJ is not the president’s personal law firm (nor is the Attorney General supposed to be a president’s “wingman,” for that matter). Now that the Westfall mechanism has been excluded, taxpayers will be on the hook for Trump’s defense if they remain on the case.
If the sovereign-immunity path has been precluded, then it doesn’t make much sense for the DoJ to stick with the case at all, for that reason among others. Pursuing appeals on this decision through the DC Circuit and then to the Supreme Court will only amplify the ethical questions of having a president attempt to use the DoJ to quash personal lawsuits. Maybe it’s better to just let this go back to state court and deal with it more quietly there — and use attorneys that Trump can easily afford on his own.