Trump Might Escape Writer’s Defamation Suit Because He Was President
A District of Columbia court will have to determine whether Donald J. Trump was acting in his official capacity as president when he scoffed at the accusations of a woman who said he raped her decades ago, a federal appeals court in New York ruled on Tuesday.
The future of the case, involving the writer E. Jean Carroll, depends on the decision. If the D.C. court rules that Mr. Trump was acting in his role as a federal employee — and the United States becomes the defendant, instead of Mr. Trump — Ms. Carroll’s suit cannot proceed, because the federal government cannot be sued for defamation.
The 2-to-1 ruling on Tuesday by a three-judge panel of the U.S. Court of Appeals for the Second Circuit in New York came in a case in which Ms. Carroll said Mr. Trump damaged her reputation when he denied attacking her in a department store dressing room in the 1990s and branded her a liar.
The ruling is a setback for Ms. Carroll, but she has said she will file a separate suit in November, taking advantage of a new state law giving adult sexual assault victims a one-time opportunity to file civil lawsuits, even if the statute of limitations has long expired.
Ms. Carroll’s lawyer, Roberta A. Kaplan, said in a statement on Tuesday that her client would file her lawsuit under New York’s Adult Survivor Act, on Nov. 24, “the first date she is able to do so under the new statute.”
Ms. Kaplan added that she was confident the appeals court in Washington would agree with her client’s position in the defamation lawsuit that Mr. Trump was not acting in his official capacity when he made the comments.
Alina Habba, a lawyer for Mr. Trump, did not immediately respond to a request for comment.
The federal appeals panel’s majority opinion was written by Judge Guido Calabresi, who was appointed by former President Bill Clinton. It does not express a view on whether Mr. Trump’s statements were defamatory.
What to Know About E. Jean Carroll’s Accusations
A looming lawsuit. E. Jean Carroll, a writer who says former President Donald J. Trump raped her in the mid 1990s, plans to use a law passed in May to sue Mr. Trump. Here is what to know:
Who is E. Jean Carroll and what does she claim? Ms. Carroll is a journalist and a onetime advice columnist for Elle magazine. She wrote about the alleged assault in a 2019 memoir, claiming that Mr. Trump had attacked her in the dressing room of the Bergdorf Goodman department store in Manhattan. The account was the most serious of several sexual misconduct allegations women have made against Mr. Trump, all of which he has denied.
How did Trump respond to her claims? After Ms. Carroll’s account appeared as an excerpt of her then-forthcoming book in New York magazine, Mr. Trump emphatically denied her accusations, saying that she was “totally lying,” that the assault had never occurred and that he could not have raped her because she was not his “type.”
On what grounds is Ms. Carroll suing Mr. Trump? In May, New York passed a law giving adult sexual assault victims a one-time opportunity to file civil lawsuits, even if the statutes of limitations have long expired. Mr. Carroll intends to file her case on Nov. 24, the start of a one-year window in which the law allows such suits to be filed.
Is this Ms. Carroll’s first suit against Mr. Trump? No. In 2019, Ms. Carroll filed a defamation lawsuit against Mr. Trump in state court for branding her a liar. In 2020, while Mr. Trump was still president, the Justice Department took over his defense from private lawyers and moved the case into federal court, where it argued that he could not be sued for defamation. After the judge rejected the Justice Department’s bid to represent him and allowed the suit to move forward, the department appealed. The case remains pending.
It reverses the ruling of Judge Lewis A. Kaplan of U.S. District Court in Manhattan, who had held that the president is not considered a federal employee for the purposes of civil lawsuits, and that in any case Mr. Trump had been acting outside his official role when he made the statements.
In November 2019, Ms. Carroll sued Mr. Trump for defamation in state court in Manhattan, claiming he had lied in publicly denying he had raped her, an accusation she had made months earlier in a book excerpt in New York magazine.
In the excerpt, Ms. Carroll had said Mr. Trump threw her against the wall of a dressing room at Bergdorf Goodman in Manhattan in the mid-1990s. Mr. Trump then pulled down her tights, opened his pants and forced himself on her, she claimed.
After Ms. Carroll’s allegation was published, Mr. Trump said she was “totally lying,” denied that the assault had occurred and said he could not have raped her because she was not his “type.”
In August 2020, a state judge issued a ruling in the case that could have opened the door to Mr. Trump’s having to sit for a sworn deposition before the presidential election. A month later, the Trump administration’s Justice Department entered the case.
In a highly unusual move, the department transferred the case into federal court in Manhattan and substituted the federal government for Mr. Trump as the defendant.
Ms. Carroll’s lawyers argued vigorously in court filings that Mr. Trump was not acting as a government employee when he made the remarks.
“There is not a single person in the United States — not the president and not anyone else — whose job description includes slandering women they sexually assaulted,” Ms. Carroll’s attorneys said in a court filing.
That October, Judge Kaplan of Federal District Court rejected the Trump administration’s position and ruled that Ms. Carroll’s lawsuit could continue against Mr. Trump in his private capacity.
Mr. Trump’s “comments concerned an alleged sexual assault that took place several decades before he took office,” Judge Kaplan wrote, “and the allegations have no relationship to the official business of the United States.”
Mr. Trump’s lawyers appealed the ruling to the Second Circuit.
In a June 2021 brief filed with the appeals court, the Justice Department under the new Biden administration supported Mr. Trump’s position. Though Mr. Trump’s remarks about Ms. Carroll were “crude and disrespectful,” the department wrote, the Trump administration’s argument that Mr. Trump was acting in his official capacity were correct.
The panel that heard the case in December included Judge Calabresi, William J. Nardini — a Trump appointee — and Denny Chin, who was appointed by former President Barack Obama.
In a strongly worded dissenting opinion, Judge Chin disagreed with the other judges’ finding that the president is an employee of the government. Aside from the system of checks and balances, and constitutional “precautions” such as impeachment, “no one controls the president,” Judge Chin wrote.
“If the government is correct that the United States must be substituted for Trump in this case under the Westfall Act,” Judge Chin wrote, citing the 1988 statute that protects federal employees from lawsuits, “then Carroll is left without any remedy, even if Trump indeed defamed her.”
Judge Chin added, “Trump was not acting in the scope of his employment when he made comments about Carroll and her accusations because he was not serving any purpose of the federal government.”
He wrote, “Carroll’s allegations plausibly paint a picture of a man pursuing a personal vendetta against an accuser.”
Judge Calabresi also filed a separate opinion, noting that the matter touched on a question that no court had previously addressed and that “raises profound problems” about the limits of immunity afforded to federal employees. He said the District of Columbia court would have to answer that question.
