Trump, the Carroll case, and the problem with argument by outrage

If the federal court agrees that Trump was acting within the scope of his office, then the case is over. That’s because the United States hasn’t waived sovereign immunity for defamation claims — you can’t sue the feds for defamation, so a defamation case against the United States must be dismissed. She doesn’t get a jury trial on that question; it’s a question of law for the court, it’s her burden to prove that Trump wasn’t acting within the scope of his office, and the court may resolve it based on the allegations in her complaint.

This has provoked widespread outrage. People are aghast at the notion that it’s part of of the President’s job to talk about rape allegations against him from his private life before the Presidency. People are aghast that their tax dollars are used to pay for Trump’s defense on this. But what the law is, and what we feel it should be, are two very different things.

Because of the way that courts have defined “scope of office and employment,” Trump has at least a plausible argument that he was within that scope. Several courts have found that federal officials talking to the press — even in the context of private matters — are acting within the scope of their office.