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(Photo by Alex Wong/Getty Images)
After a disastrous last week in several courts, Donald Trump got a rare win today at the Second Circuit, where a divided panel held that he was an employee of the federal government for the purposes of the Westfall Act when he said in 2019 that columnist E. Jean Carroll was too ugly for him to have raped decades earlier in a Bergdorf Goodman’s dressing room, as she has alleged.
This reverses an earlier ruling by US District Court Judge Lewis Kaplan that presidents are not “employees” of the federal government under the Westfall and Federal Tort Claims Acts, and thus Trump could not have been acting within the scope of his employment when he said, “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened.”
With great respect.
Carroll sued for defamation in New York state court, and then spent months chasing Trump around for months while he ducked her process server in DC and New York. On the eve of being forced to comply with discovery, Attorney General Bill Barr swept in to substitute the United States as defendant under the Westfall Act and the FTCA, which would conveniently make the case disappear, since the federal government has not waived sovereign immunity for the tort of defamation.
This automatically removed the case to federal court while the parties fought about Trump’s employment status. In 2021 when that status changed, there was some speculation that Attorney General Merrick Garland might reverse positions. But when Judge Kaplan ruled that Trump, as the unitary executive, had never been a government employee, and that, even if he had been his comments about Carroll were outside the scope of his employment, the Justice Department appealed on both counts. DOJ gonna DOJ, right?
And his morning the Second Circuit handed Trump and his frenemy Merrick Garland at least a partial win.
“It follows that the President of the United States fits comfortably within the statutory description’s plain language,” wrote Judges Calabresi and Nardini, appointed by Clinton and Trump, respectively. “For, as Trump points out in his brief, the President is a government employee in the most basic sense of the term: He renders service to his employer, the United States government, in exchange for a salary and other job-related benefits.”
The majority then punted on the second point, certifying to the DC Court of Appeals the issue of whether Trump was acting within the scope of his employment for the purposes of DC law when he denied assaulting Carroll and implied that she was lying about him for money as part of a plot with evil Democrats. In this, the court reversed Judge Kaplan again, since the trial judge found that local law would not afford Trump employee protections for the disputed comments.
In dissent, Judge Denny Chin, an Obama appointee, disagreed with both parts of the majority holding.
“[T]o the extent the FTCA is silent as to whether the President is covered, I would not interpret that silence to cover the President,” he wrote, adding later that “Carroll’s allegations plausibly paint a picture of a man pursuing a personal vendetta against an accuser, not the United States’ ‘chief 20 constitutional officer’ engaging in ‘supervisory and policy responsibilities of utmost discretion and sensitivity.’”
He further pointed out that, by the majority’s logic, it would be literally impossible for a sitting president to defame anyone, since any address to a third party — satisfying the tort’s publication requirement — would amount to “conduct that is of the kind he is expected to perform — like speaking to a reporter or attending a government meeting,” placing him within the scope of his employment.
Presumably, this will put the hotly disputed discovery on hold, pending a determination by DC’s highest court. The former president has been fighting for years to avoid having to submit to a cheek swab to be matched to the male DNA extracted from the dress Carroll says she wore that day. And if the next round goes his way, he may escape that day of reckoning entirely.
Sometimes the good guys do not win.
Carroll v. Trump [Second Circuit Holding]
Elizabeth Dye lives in Baltimore where she writes about law and politics.
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