President Donald Trump has a knack for finding success despite his own spectacular failure. He won the presidency in 2016 though he lost the popular vote. He has gotten his way in the courts time and again by using litigation to delay producing subpoenaed documents and tax returns. And now, he appears to be using the Department of Justice to win by losing again, this time in a defamation case.
The case arises from Trump’s public denials of allegations by journalist E. Jean Carroll that Trump raped her in the 1990s in the dressing room of a New York department store. He called her allegations “false,” “fiction,” and a “disgrace,” suggesting that she was just trying to gain publicity, sell books, and carry out a political agenda. On Tuesday, the Justice Department filed a notice of removal of the case from state to federal court in New York and a motion to substitute the United States as the defendant. If the Justice Department prevails in its request, taxpayers will pay for Trump’s legal defense and any money judgment that results. Or, more likely, the case will be dismissed on grounds of sovereign immunity.
The Justice Department’s filing makes the remarkable claim that when Trump made his allegedly defamatory remarks about Carroll, he was acting in the scope of his employment as president of the United States. We are all familiar with most of the president’s duties — serving as commander-in-chief of the armed forces, taking care that laws are faithfully executed, nominating judges — but nowhere does the Constitution mention defaming women who accuse him of rape.
Under a statute known as the Westfall Act, the Justice Department routinely removes state tort cases to federal court when a government employee is named as a defendant for conduct that occurred in the scope of his employment. A typical case involves a mail carrier who is involved in an accident in his postal truck. If DOJ certifies that the employee was carrying out his duties at the time of the accident, and the court agrees, then the United States is substituted as the defendant. This law protects employees from personal liability for accidents that occur while on the job.
Here, the judge must decide whether Trump was acting within the scope of his employment when he made the allegedly defamatory comments; if so, the United States may substitute as the defendant. The consequence of this decision is enormous. That’s because defamation is an intentional tort that cannot be brought against the United States. The government ordinarily enjoys sovereign immunity from civil lawsuits, meaning it can’t be sued. The government may consent to be sued for certain types of harms, and it has done so for some torts, such as negligence, under the Federal Tort Claims Act. But the act specifically provides that the United States does not consent to being sued for defamation. So, if the United States is allowed to become the defendant, the Justice Department’s next step will surely be to move to dismiss the case on grounds of sovereign immunity — and most certainly, that motion would be granted. Thus, the court’s decision about whether Trump was acting in the scope of his employment determines whether the case goes forward.
When deciding whether an act occurred within the scope of employment, courts will consider whether it was done to promote the employer’s interest and whether the conduct was of the type that the employer hired the employee to perform. In this case, it is hard to imagine that accusing Carroll of fabricating rape charges was in the best interests of the United States or was the type of conduct a president is “hired” to perform. In fact, there is some question as to whether the president qualifies as an “employee” at all.
In deciding the scope question, courts look not only at the act, but also its context. Here, Carroll’s complaint alleges three different defamatory statements — a June 21, 2019, written statement, verbal remarks on the lawn of the White House before boarding Marine One the next day, and a June 24, 2019, interview with The Hill. As long as any one of those statements was outside the scope of Trump’s employment, then the case may proceed against Trump himself.
A Justice Department lawyer could make an argument, albeit an aggressive one, that when a president is answering questions for the press, any answer he gives is done in the scope of his employment, even if the topic strays to matters relating solely to conduct committed in his personal life and predating his presidency. But that logic fails when it comes to Trump’s written statement. It was issued voluntarily, at a time of his choosing, not while he was otherwise engaged in performing his job duties, a context that would strongly indicate that it was done outside the scope of his employment. With at least this one statement to hang her hat on, Carroll should prevail and prevent the Justice Department from substituting the United States for Trump as the defendant.
The Justice Department’s likelihood of success on its argument that Trump was acting within the scope of his employment is a long shot. Why, then, go down this road if only to lose? Because Trump knows it will produce the result he wants. If the court rules against the Justice Department, it may appeal that decision to the Second Circuit Court of Appeals and then to the Supreme Court. Each step delays the day of reckoning by many months.
The timing of the Justice Department’s removal notice suggests that stall tactics are at work. A removal notice is usually filed shortly after the defendant is served with the lawsuit. Here, the notice was filed ten months later, on the last day Trump could appeal an adverse decision from the state court in New York, which had denied his immunity defense. The case had reached the discovery stage, in which Trump would soon be expected to sit for a deposition, produce documents, and provide a DNA sample. Rather than submit to these indignities and risks, Trump found a way out when the Justice Department stepped in and removed the case to federal court. The November election will be long past by the time Trump ever faces discovery or trial in this case.
Never mind that the Justice Department’s reputation for independence and integrity takes yet another blow that will further erode public trust and harm the ability of federal law enforcement to effectively protect our nation. Trump uses the Justice Department the way he uses everyone else.