Not As Surprising As You May Think: Garland DOJ Says That Trump Denying Raping E. Jean Carroll Was Official Presidential Business
Late last year, we covered the story of the DOJ stepping in to take over a defamation case for President Trump. As we noted at the time, the defamation case itself was pretty weak, though it's similar to a series of other defamation cases we've seen in recent times. E. Jean Carroll claimed that Donald Trump had sexually assaulted her many years ago. Trump later denied the claim, saying that it was "totally false" and saying (incorrectly, as it turns out) that he "never met this person in my life." Carroll then sued for defamation based on the denials. As noted, this kind of defamation case has popped up a few times, including a high profile one against Bill Cosby by one of his accusers as well.
What was perhaps somewhat different about the Carroll case, was that it was against the sitting president, and under the Westfall Act, if the Attorney General "certifies" that an action taken by federal employees that leads to a lawsuit against them was "within the scope of his office or employment," then the DOJ gets to insert itself into the case instead of the initial defendant (and, in a defamation case, then the case would be automatically dismissed, as you can't defame "the United States.")
So, the big question in this situation is whether or not Donald Trump denying sexually assaulting (or even meeting Carroll) was done as part of his official duties as president. I think it's a huge stretch to argue that it does -- and last fall, a judge agreed with me, denying the DOJ's attempt. The judge, Lewis Kaplan, noted that if Trump were talking about policy issues, it would be different, but denying a sexual assault from long before he was president doesn't appear to be official government business. I recognize that some people have argued otherwise, noting that since the accusations came up while he was president, and could potentially impact his job as president, commenting on the claims magically becomes the duty of the president, but that seems incredibly weak, and would effectively make the president immune from defamation claims in most instances.
Judge Kaplan went even further, though, in saying that he didn't think the president is even covered by the Westfall Act. This was surprising, but the argument was pretty compelling, with the key points being:
The president is a constitutional officer. He occupies the highest office in our nation, which is created by Article II of the Constitution. But that is not what Section 2671 requires. It speaks only of officers . . . of any federal agency," not officers of the United States within the meaning of the Constitution....
[....[
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 executive branch. The government has not attempted to identify any such agency in its papers, but the two most obvious candidates are the Executive Office of the President (EOP") and the president's cabinet. But neither entity fits the bill. The head of the EOP, which is a network of agencies, is the president's chief of staff. And even if one were to call the cabinet an executive department" or independent establishment" - a dubious contention - the president himself is not a member of the cabinet, although the vice president is.
After Biden won the election, many assumed that the new DOJ, under Merrick Garland, would let the matter drop. After all, would a Biden administration really want to be in court trying to kill a defamation case against Donald Trump?
But, of course, that ignores how the DOJ functions, and the importance the DOJ puts on making sure it retains this power in other, future cases. So, while it surprised many, it shouldn't be at all surprising that the DOJ is appealing the decision.
The thing that seems most important to the DOJ is whether or not the Westfall Act applies to the president. For fairly obvious reasons, any presidential administration probably wants that to remain in place:
The district court held that the President is not an employee of thegovernment" for purposes of the FTCA and, hence, for the Westfall Act, 28 U.S.C. 2679(b)(1). If that were correct, no action taken by the President could give rise totort liability on the part of the United States. And the United States could never besubstituted as the defendant in a tort action against a President in his or her personalcapacity, even when the conduct at issue was incontrovertibly taken within the scopeof employment.
Basically, the DOJ says that even if the Court technically read the law properly, no one else has ever read the law that way.
To our knowledge, the United States has never disclaimed liability for tortscommitted by an executive branch employee on the ground that the employee wasnot employed by one of the fifteen cabinet level departments identified in 28 U.S.C. 451. To the contrary, all three branches of government have long construed thestatute broadly.
And then it argues that the district court also should have allowed the DOJ to take over the case on the grounds that Trump denying the assault was, in fact, official business. The DOJ brief notes that it was discussing "reprehensible conduct," but that it could still be done within the scope of the President's duties.
Applying these established principles to this case, the statements by then-President Trump fell within the scope of his employment. The district court'scontrary conclusion was premised on an assumption that the statements were notwithin the scope because President Trump's views on [Ms. Carroll's] sexual assaultallegation" were not pertinent to his employment since they reveal nothing about theoperation of government" (SPA53) and [n]either the media reports nor theunderlying allegations have any relationship to his official duties" (SPA58). Thatpremise was mistaken.
When members of the White House media asked then-President Trump torespond to Ms. Carroll's serious allegations of wrongdoing, their questions were posedto him in his capacity as President. Likewise, when Mr. Trump responded to thosequestions with denials of wrongdoing made through the White House press office orin statements to reporters in the Oval Office and on the White House lawn, he actedwithin the scope of his office. Elected public officials can-and often must-addressallegations regarding personal wrongdoing that inspire doubt about their suitability foroffice. Such wrongdoing can include not only the serious charges of criminalbehavior leveled here, but a range of activities including fraud and malfeasance.Officials do not step outside the bounds of their office simply because they areaddressing questions regarding allegations about their personal lives. Thus, inBallenger, the D.C. Circuit concluded that a congressman acted within the scope ofemployment when he allegedly engaged in defamation during an interview to explainthe reasons for his separation from his wife. 444 F.3d at 662. The district court'scontrary reasoning in this case fails to appreciate the responsibility that electedofficials owe the public to respond to serious allegations that cast doubt on theirfitness for office.
Once again, this is the DOJ and the administration doing what the DOJ and any administration is likely to do: protecting their own powers. It shouldn't be surprising, even if it feels weird that the Biden DOJ would continue down this path. It's likely going to be true in a number of other cases started by the Trump DOJ that the Biden DOJ might not have initiated, but doesn't want to hinder future powers.