Judge: Trump Denying He Raped Someone Was Not Part Of His Official President's Duties

Last month we wrote about an absolutely ridiculous situation in which the DOJ sought to insert itself into the long-running defamation case brought by E. Jean Carroll against Donald Trump. As we noted, Carroll's defamation claims seem fairly weak. They're part of a pattern of somewhat sketchy defamation claims in which someone accuses someone of something awful, and then the accused person denies it -- and the accuser says the denial is defamation.

In this case, Carroll claims that Trump sexually assaulted her years ago. Trump denied even knowing her. She sued for defamation. Again, the case seems pretty weak and I think Trump has a decent chance of winning. However, despite trying, Trump and his personal lawyers failed to stop the discovery process, in which she's seeking a sample of his DNA as part of proving her case. At that point, the DOJ stepped in, citing the Westfall Act, which requires the DOJ to step in and take over cases if the Attorney General "certifies" that the actions being sued over were done by a federal employee while "acting within the scope of his office or employment." And the key bit here: because of sovereign immunity, you cannot sue the federal government for defamation. So if the court allowed the DOJ to step in, in place of the President, the case would then need to be dismissed immediately.

And, thus, the argument the DOJ made was that Trump denied sexually assaulting Carroll... as part of his job as President of the US. As we pointed out in our original post, there were all sorts of reasons why this was ridiculous. Ken White did point out that there are some rulings on the books saying that politicians answering questions from the press about their personal lives is part of their job description, and thus it was possible that a judge might actually side with the DOJ.

However, the judge did not do that at all. In a 61 page, very detailed ruling, Judge Lewis Kaplan (last seen here berating copyright troll Richard Liebowitz) rejected basically every last bit of the DOJ's argument. He did so on two key grounds. There was the reason that lots of us expected: that denying you sexually assaulted someone is not part of the job of being President:

Acomment about government action, public policy, or even an election is categorically differentthan a comment about an alleged sexual assault that took place roughly twenty years before thepresident took office. And the public's reasons for being interested in these comments aredifferent as well. The president's views on the former topics are interesting because they alertthe public about what the government is up to. President Trump's views on the plaintiff's sexualassault allegation may be interesting to some, but they reveal nothing about the operation ofgovernment.

Separately, Judge Kaplan notes that the DOJ messed up its filing and left the strongest argument it had out of the initial filing and only put it in the reply brief. That's a no-no. You have to include all your arguments upfront.

The government's best argument on this point is that President Trump'sstatements about Ms. Carroll were within the scope of his employment in that refuting heraccusation furthered his ability to govern effectively because the accusation was reported widelyand charged him with the commission of a serious crime. But there are at least three answers tothat objection.

As an initial matter, the government first made the argument in its reply brief,thereby foreclosing the plaintiff from responding to it. As previously discussed, it therebywaived the argument as its counsel agreed in open court, as previously discussed.

Second, the Court would reject the argument even if it were not waived. Whilethe government's position is not entirely without merit, it goes much too far. Accepting it wouldmean that a president is free defame anyone who criticizes his conduct or impugns his character- without adverse consequences to that president and no matter what injury he inflicts on theperson defamed. Indeed, the same would be true for many government officials, who plausiblycould argue that criticism of their behavior or character, even if completely unrelated to theirgovernment employment, would undermine their ability to perform effectively while in office.

Perhaps more surprising, though, is that Judge Kaplan argued that the Westfall Act doesn't even apply to the President because the President does not qualify as a federal employee under the Act. I wasn't expecting that, and it sounds a bit counterintuitive, but the court makes a surprisingly compelling argument:

The president is a constitutional officer. He occupies the highest office in ournation, which is created by Article II of the Constitution. But that is not what Section 2671requires. It speaks only of officers . . . of any federal agency," not officers of the United Stateswithin the meaning of the Constitution. So we turn to the question whether the president is anofficer of any federal agency" within the meaning of Section 2671. As noted above, Section2671 states that the term federal agency" includes the executive departments, the judicial andlegislative branches, the military departments, independent establishments of the United States,and corporations primarily acting as instrumentalities or agencies of the United States."

At the outset, it is apparent that this definition does not include the entireexecutive branch. Although Congress referred to the executive departments," the fact that thephrase is plural makes clear that Congress did not mean the executive branch." Congress knewhow to refer to an entire branch of government, as evidenced by the fact that the very next wordsof the statute are the judicial and legislative branches." The plain meaning of this language isthat members of Congress, federal judges, and the staffs of both all are included in the termfederal agency." But the entire executive branch is not. Only those parts of the executivebranch that fall within the other terms of the definition are included.

The argument goes on for a few pages and then notes:

Because the president is at the apex of the executive branch, many think of him,in a colloquial sense, as the head" of many federal departments, agencies, and organizations.At the very least, one might imagine that he leads some agency at the core of the executivebranch. The government has not attempted to identify any such agency in its papers, but the twomost obvious candidates are the Executive Office of the President (EOP") and the president'scabinet. But neither entity fits the bill. The head of the EOP, which is a network of agencies, isthe president's chief of staff. And even if one were to call the cabinet an executivedepartment" or independent establishment" - a dubious contention - the president himself isnot a member of the cabinet, although the vice president is.

Indeed, the basic civics lessons on the White House's website draw a cleardistinction between the executive branch," the executive departments," and federal agencies."Its page on The Executive Branch" states that the Constitution vests in the president [t]hepower of the Executive Branch" and that [f]ifteen executive departments - each led by anappointed member of the President's Cabinet - carry out the day-to-day administration of thefederal government." It states also that the executive departments" are joined in this [effort]by other executive agencies such as the [Central Intelligence Agency] and EnvironmentalProtection Agency, the heads of which are not part of the Cabinet, but who are under fullauthority of the President."

There's a lot more on this, but the key point that is made is that the Westfall Act was responding to a specific Supreme Court case about federal employees. But there was another case that predated that, regarding Richard Nixon, noting that the President already has immunity from lawsuits regarding official acts. In other words, Congress had no reason to make the Westfall Act cover the President because the President was already immune from lawsuits over official acts.

In 1982, the Supreme Court decided in Nixon v. Fitzgerald67 that the president isentitled to absolute immunity from damages liability predicated on his official acts." So whenthe Supreme Court decided Westfall just six years later and held that federal officials are notabsolutely immune from state-law tort liability for all actions committed within the outerperimeter of their duties," it clearly was not referring to the president. When Westfall referredgenerally to federal officials," it merely expanded the potential amenability to suit and liabilityof that more limited group of individuals.

Congress was well aware of this background when it passed the Westfall Act. Asthe Supreme Court later wrote, [w]hen Congress wrote the Westfall Act, which covers federalemployees generally . . . , the legislators had one purpose firmly in mind." That purpose wasto return Federal employees to the status they held prior to the Westfall decision.'" Therewas no need to extend the protections of the Westfall Act to the president, whom the SupremeCourt evidently recognized was not a federal employee," for the very good reason that thepresident already had absolute immunity from damages liability predicated on his official acts"by virtue of Nixon v. Fitzgerald.

Unless one ignores Nixon, it is impossible to read Westfall as applying to thepresident. Given that the one purpose" of the Westfall Act was to return Federal employees tothe status they held prior to the Westfall decision," Congress presumptively was aware thatneither Section 2671 nor the FTCA applied to the president. It therefore had no reason to extendthe Westfall Act to that office.

And, since denying sexual assault is not part of his official job, none of this matters anyway. The President is not able to sidestep the lawsuit. Well, yet. We'll see what sort of appeals happen. Or what happens if Trump is no longer President in the near future...