The court will look at several comments by Trump after E. Jean Carroll's claims went public.(AP)
The court will look at several comments by Trump after E. Jean Carroll's claims went public.(AP)

Trump asks appeals court to let him dodge rape accuser suit

Trump late Friday asked the US Court of Appeals in Manhattan to reverse a district judge’s finding that presidents aren’t covered by the Westfall Act of 1988.
Bloomberg
UPDATED ON JAN 17, 2021 02:57 PM IST

President Donald Trump urged a federal appeals court to rule that he qualifies as a government employee under a law that would let him to dodge a defamation suit by E. Jean Carroll, the New York advice columnist who claims he raped her two decades ago.

Trump late Friday asked the US Court of Appeals in Manhattan to reverse a district judge’s finding from October that presidents aren’t covered by the Westfall Act of 1988, which protects government workers from being personally sued for actions related to their official duties. The US Justice Department filed a separate brief backing Trump’s argument.

Carroll went public in 2019 with her allegation that Trump attacked her in a deserted area of the Bergdorf Goodman department store in Manhattan. She then sued him for defamation after he said she was lying and accused her of conspiring with Democrats to undermine him. Trump claims his statements denying Carroll’s claim were part of his official duties.

“Presidents plainly are employees of the Government, and Congress plainly intended Presidents to be covered by the Westfall Act -- notwithstanding the District Court’s strenuous but strained and unsuccessful effort to show otherwise here,” Trump’s lawyer, Marc Kasowitz, said in the filing.

The case won’t be impacted by Trump’s departure from office next week after losing the November election to President-elect Joe Biden, whose Justice Department will inherit the case. Carroll has been trying to push ahead with the exchange of evidence between the two sides, including deposing Trump under oath and securing a DNA sample from him.

It isn’t a foregone conclusion that the Biden administration will accept Carroll’s novel arguments about the law. The Westfall Act has previously been applied to other presidents in litigation, including Barack Obama, Bill Clinton and George W. Bush, though under different circumstances. But even if the incoming administration believes the law applies to Trump, it may disagree that his specific comments about Carroll were part of his official duties.

“We expect that the new Department of Justice under President Biden will want to take a long, hard look as to whether they agree with Donald Trump that his hateful and defamatory statements about E. Jean Carroll were made within the scope of his employment as President of the United States,” Roberta Kaplan, Carroll’s lawyer, said in a statement on Saturday.

U.S. District Judge Lewis Kaplan in Manhattan rejected the Justice Department’s argument in October, finding that Trump’s comments about Carroll wouldn’t be protected by the law anyway because they related to an allegation about conduct from before he was elected. On Friday, the government said Kaplan was mistaken.

‘Scope of His Office’

Trump’s disputed comments were an “outgrowth of the President’s public response to allegations challenging his fitness for office,” Acting Assistant Attorney General Jennifer Dickey said in the filing. “He thus acts within the scope of his office when, in this context, he seeks to defuse personal issues that threaten to impair his ability to achieve his agenda.”

The court will look at several comments by Trump after Carroll’s claims went public, including a statement issued to the media by the White House comparing Carroll’s claims to “false” accusations against Supreme Court Justice Brett Kavanaugh and saying they “diminish the severity of real assault.” Trump later told reporters: “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened.”

The appeals court will determine whether the president is an “employee of the government” for purposes of the federal law protecting such workers from litigation. It will also decide whether Trump was acting within the scope of his office when he made allegedly defamatory statements.

If the court allows the U.S be substituted for Trump as defendant in the suit, the case would be dismissed because the government can’t be sued for defamation.

The case is Carroll v. Trump, 20-cv-07311, U.S. District Court, Southern District of New York (Manhattan).

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