Category: News Feeds

While perhaps known for its less savory aspects and characters, this author’s native region has some high achievements and products that are of definite value: diners, pizza, bagels, excellent schools, a fine if somewhat insane president of the United States, Steve Buscemi. Still, my Long Island pride has perhaps never been stronger than over the past month, a possible unprecedented orgy of fraud and duplicity from the Cross Island Parkway to Montauk Point, from sea to Sound, in spite of the fact that much of Goodfellas was filmed, and could well have been set, there.

President Donald Trump’s health is on our country’s collective mind as he has been afflicted with the COVID-19 virus. Despite what we see in the media, the Commander in Chief is not immune to the same fears and concerns that have plagued each and every one of us during this deadly pandemic. Life, death, incapacity, these are all issues that individuals  have been struggling with since the epidemic emerged last March. COVID-19 has prompted people to consider their own mortality and, as a result, review or commence their estate plan whether it means writing a last will and testament, or making a power of attorney or health care proxy. This also entails business transactions like purchasing life insurance and other financial products to provide for loved ones in addition to planning burials and cremations and talking with family members about last wishes.

Trump, by way of his hospital car ride and quick return to the White House only days after his diagnosis, seems to have chosen to focus on strength and resistance. These assertions, however, do not obviate the need for proper planning, contemplation, and sensitivity for the times when tragedy strikes, when medicines do not work and when our bodies finally fail. In many ways it is during the strong periods in our lives, during our victories from illness (if we are so lucky to have them) that we should consider and plan for the worst.

A last will and testament is not made public until it is filed in the Court upon death. It is possible that a last will and testament not need to be filed if assets are held jointly, with named beneficiaries or in a trust. We do not definitively know whether Trump has taken the initiative to write a last will and testament or other testamentary vehicle, although the Trump family’s history of estate litigation would suggest that he should.

In 2001, Trump was involved in Queens County, State of New York, litigation regarding the last will and testament of his father, Fred C. Trump who died in 1999. Grandchildren Mary L. Trump and Fred Trump III, the children of Fred Trump, Jr., who predeceased his father at the age of 42, filed objections to Fred C. Trump’s last will and testament. Robert L. Trump, the President’s brother who died in August 2020, was the proponent of the last will and testament. One of the issues raised in the lawsuit was that the grandchildren were not appropriately included in the disposition of the $20 million estate and various business interests. This is an issue that arises often in estate matters, when a child dies before his parent, leaving his own children to stand in his place as beneficiaries of the grandparent’s estate. Allegations of undue influence were asserted and eventually a settlement among seven relatives was reached.

The case, however, did not end there as the family was back in Court last summer when Robert Trump tried to prevent his niece from publishing her  tell-all book, Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man, which details matters related to President Trump and the Trump family. An injunction was demanded citing the Surrogate’s Court settlement agreement which included a confidentiality agreement. It was plead that the only exception to such a confidentiality agreement would be if the parties to the settlement agreement agreed. The matter made its way to the appellate court wherein the book was released, but it did not address whether the confidentiality agreement was violated. And still, following the book release, Mary L. Trump filed a lawsuit against the President, his sister,  and the deceased brother’s estate, seeking unspecified damages, claiming that she was cheated out of her proper share of the estate and business.

Besides his extended family, for which he has been embroiled in various cases, Trump has five children and two ex-wives. One child, Barron Trump, is a minor. He also has a spouse, Melania Trump. Although the President may not want to focus on sickness and death at this time, his family history and composition, suggest that we all use this time to take care of our  personal and estate plans.

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Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.

The Drug Enforcement Agency’s hemp Interim Final Rule (the DEA Rule) continues to keep the hemp industry up at night.

If you recall, the DEA Rule suggests that in-process hemp extract is a schedule I controlled substance during any point at which its tetrahydrocannabinol (THC) concentration exceeds 0.3% on a dry-weight basis. “Any point” includes even fleetingly during the processing phase and includes situations where the THC percentage is brought back into legal compliance for the finished product.

But the DEA Rule also raises the concern of whether any of the finished hemp extracts currently on the market — not merely intermediary hemp – in fact comply with the 0.3% on a dry-weight basis threshold.

The Agriculture Improvement Act of 2018 (the 2018 Farm Bill) legalized hemp by differentiating the crop, its derivatives, cannabinoids, and extracts from marijuana based on a subjectively determined 0.3% THC threshold. If the plant materials contain no more than 0.3% THC on a dry-weight basis then they are treated as hemp. However, if the same plant materials exceed this 0.3% THC limit, they are deemed marijuana, and thus, are illegal under federal law.

Therefore, the precise and accurate calculation of THC concentration is paramount to the legal operation of a hemp business. Nevertheless, much uncertainty remains around THC testing methods and how the dry-weight basis requirement applies to liquid substances such as finished hemp extract.

The 2018 Farm Bill and the U.S. Department of Agriculture’s hemp Interim Final Rule (the USDA Rule) provide for the regulation of raw hemp and impose, among other things, pre-harvest testing requirements. The federal law and regulations do not regulate the processing of hemp into finished liquid forms. Moreover, the pre-harvest testing requirements and dry-weight basis concept do not translate to liquid hemp extracts.

According to the USDA Rule, the term “dry-weight basis” means:

The ratio of the amount of moisture in a sample to the amount of dry solid in a sample. A basis for expressing the percentage of a chemical in a substance after removing the moisture from the substance. Percentage of THC on a dry weight basis means the percentage of THC, by weight, in a cannabis item (plant, extract, or other derivative), after excluding moisture from the item.

As you can see, the definition does not explain how labs must report the THC concentration of an extract on a dry-weight basis. Yet, references to “extracts,” “other derivatives,” and “excluding moisture from the item” suggest that the USDA, as well as the DEA — the DEA strongly influenced the drafting of the USDA Rule and provides in its own Rule that “any derivative of the hemp plant that contains more than .3% THC on a dry weight basis is considered a federally illegal marijuana extract, even if it was derived from legal hemp” (emphasis added) — expect this testing process to apply beyond the testing of raw hemp.

The lack of federal guidance regarding the calculation of dry weight for hemp extracts means that labs are free to adopt their own calculation methodology. This, in turn, means that certificates of analysis (COAs) do not necessarily reflect accurate results of the THC concentration “on a dry weight basis” found in a finished hemp extract, making it impossible for anyone in the industry to ensure their finished hemp extracts comply with federal law.

Following the enactment of the 2018 Farm Bill, a growing number of states adopted THC testing methodologies imposed on finished hemp products, including hemp extracts. Oregon, for instance, mandates that the THC concentration be reported as dry weight, and be calculated as follows: “P total THC(dry) = P total THC(wet) / [1-(P moisture/100)].” This methodology does not require labs to actually dry the hemp extract. Instead, labs must apply a mathematical formula that accounts for and simulates the removal of the moisture present in the tested substance to obtain its THC concentration on a “dry weight basis.”

This methodology also seems to align with a nonbinding guidance issued by the FDA (Guidance) for companies engaged in the clinical research of cannabis-derived drugs. Although the guidance strictly pertains to drug products, this THC calculation may be indicative of the manner in which the FDA may eventually propose to test hemp-derived finished products.

Nevertheless, even if the FDA adopted the Guidance as part of its regulatory framework of hemp-derived products, the DEA may contend that using a mathematical formula to assume the difference in moisture content is not sufficient and may, instead, mandate that labs physically pull the moisture out of liquid hemp products by some chemical process — that may or may not yet exist.

Therefore, the DEA Rule continues to show the need for Congress and all relevant federal agencies to clarify statutory and regulatory gaps surrounding the production of finished hemp products, but also that until the U.S. adopts a uniform THC testing standard, hemp stakeholders will be unjustly vulnerable to federal scrutiny, criminal charges, and arrests.

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Nathalie practices out of Harris Bricken’s Portland office and focuses on the regulatory framework of hemp-derived CBD (“hemp CBD”) products. She is an authority on FDA enforcement, Food, Drug & Cosmetic Act and other laws and regulations surrounding hemp and hemp CBD products. She also advises domestic and international clients on the sale, distribution, marketing, labeling, importation and exportation of these products. Nathalie frequently speaks on these issues and has made national media appearances, including on NPR’s Marketplace. For two consecutive years, Nathalie has been selected as a “Rising Star” by Super Lawyers Magazine, an honor bestowed on only 2.5% of eligible Oregon attorneys.  Nathalie is also a regular contributor to her firm’s Canna Law Blog.

I have to protect and at least help to protect my brothers and sisters on the bench. We do that by never letting anyone forget Daniel. Never letting anyone forget what he did for us. Never letting anyone forget the high price we all pay if indeed the right things aren’t done.

This man took the most important thing in my life. I can’t let him take anything else. I love my job. I’m proud to be a United States district judge. I can’t let him take that from me.

I’m gonna strive every morning to be the best person that I could be. My son gave his life for his father and I. I have to look at that and say, ‘What a gift.’ I can’t squander it.

— Judge Esther Salas (D.N.J.), in her first television interview in the wake of her son’s murder at the hands of Roy Den Hollander, a former Cravath associate turned self-proclaimed antifeminist lawyer. Salas has pledged to return to the bench.

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

To say the Biglaw fall bonus train has slowed down is an understatement.

It all started so promisingly. Cooley made the first move in the COVID appreciation bonus game, offering associates between $2,500 and $7,500 as a special thank you from the firm for their hard work during the pandemic. But then Davis Polk got involved with a new standard, and it just blew away the Cooley scale. Their bonuses started at $7,500 and went all the way up to $40,000. And firms quickly started piling on this new bonus scale. Weil offered a seemingly unpopular hours-based bonus, but, thus far, no one has jumped on board with that.

But then there was the notable outlier: Kirkland — the world’s richest law firm — begged off fall special bonuses, and seemed to be asking the market not to follow the trend. And then Cravath followed with their own no-bonus announcement. Since that fateful announcement by the traditional compensation leader, no other firms have taken the plunge and handed out special fall bonuses. But plenty have declined to give out appreciation bonuses.

So color me not-at-all shocked that Fried Frank has made a statement that there will be no fall bonuses for associates (available in full on the next page). As one tipster said:

I’ll say that this isn’t surprising at all. The firm has made clear that they were only going to move ahead with special bonuses if the market leaders did so. When a few of the big firms decided they wouldn’t, it was clear FF would not.

Thanks for nothing, Cravath. At least Fried Frank notes they will be taking the fall bonuses into account when it’s time for year-end bonuses.

So, what do you think? Is this yet another sign to other firms not to match? We think it could be. Feel free to sound off by email, by text message (646-820-8477), or by tweet (@ATLblog). A fun or insightful response — we’ll keep you anonymous — could find its way into an update to this story.

Please help us help you when it comes to bonus news at other firms. As soon as your firm’s bonus memo comes out, please email it to us (subject line: “[Firm Name] Bonus”) or text us (646-820-8477). Please include the memo if available. You can take a photo of the memo and send it via text or email if you don’t want to forward the original PDF or Word file.

And if you’d like to sign up for ATL’s Bonus Alerts, please scroll down and enter your email address in the box below this post. If you previously signed up for the bonus alerts, you don’t need to do anything. You’ll receive an email notification within minutes of each bonus announcement that we publish.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Life at universities across the country has been changed by the COVID-19 pandemic. Even when institutions take precautions, they still have to be implemented by humans, who are subject to their own foibles. So schools are put in a position of constantly tweaking their procedures and regulations to best respond to a fluid situation.

When the University of Virginia recently saw a spike in cases, they had to tighten their protocols. Instead of asking university students to limit themselves to groups of 15 or fewer people, they knocked it down to groups of five and added a restriction on traveling in or out of Charlottesville for two weeks. All of which seems well designed to stop the spread of the infectious disease.

But they didn’t count on law students.

In response to this new policy, the UVA Student Bar Association wrote a letter to the university (according to sources at the law school, without seeking student input), asking that law students get an exemption from the new restrictions (available in full on the next page). And I know what you’re thinking, COVID doesn’t draw arbitrary distinctions between various courses of study, but don’t worry, the SBA has reasons the law school should get special treatment:

First, law students are simply at a different phase of life than our undergraduate counterparts.

Oh boy, that’s a bold stance to take. Seriously, a big chunk of 1Ls are only a year or so older than undergrads. And as the repeated reports of planned 1L parties and law student superspreader events at other law schools prove, law students are just as prone to short-sighted and selfish decisions that prioritize their own comfort and socialization as anyone else. But don’t worry, the effort to draw some sort of a hard line between the undergrads and law students continues:

Since last March, when undergraduate students were sent home and remained there during summer, many law students continued to reside in Charlottesville. Throughout this time, there were no substantial corresponding spikes in COVID-19 infections within the city.
….
The current increase in COVID-19 infections appears, instead, to correlate with the arrival of undergraduate students to Grounds.

You know, right around the same time the 1Ls arrived in Charlottesville. That’s fully 1/3rd of the law school population, so maybe back off the high horse. And tipsters at UVA Law confirm law students — even the so-called mature returning law students — haven’t been paragons of perfect quarantine etiquette:

Not only have law students been partying, but they have been shamelessly posting their travels, some flying to different states every weekend before returning to Charlottesville. Clearly the “different phase of life” means an ability to recklessly travel using this summer’s firm money.

Damn. Well then. It seem completely appropriate that the university never responded to this request for special treatment.

But wait, the story isn’t quite over yet. You’ll… completely guess what happened next! If you guessed there was a COVID outbreak at the law school, well, you’ve been paying attention to the shitshow that 2020 has been. From an email sent to the entire law school community (available in full on page 3):

We have received notice that a small number of Law School students have tested positive for COVID-19.  The students are receiving care, isolating in Charlottesville, and following protocols from the Virginia Department of Health (VDH).  We are in contact with the students and wish them a speedy recovery

Of course. COVID makes fools of us all. It looks like those added restrictions on law students were well justified indeed.

Speedy recovery to those diagnosed with COVID-19.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

We invite you as Axiom will debut its 2nd annual diversity report and unveil its newfound mission and mandate: Diversity by Design, a programmatic framework for addressing systemic representation, retention, and advancement inequities.

Join us on October 7th at 1 p.m. ET / 10 a.m. PT to learn more about Diversity by Design and why it’s essential to engineer and embed diversity for your business practices.

Discussion will focus on:

• Why legal leaders must (re)examine and go beyond diversity statistics to glean more meaningful insights.
• What Diversity by Design means and why it can fundamentally influence
  and drive performance, innovation, and productivity.
  
• How Diversity by Design can channel the strengths of one’s business model
  toward increasingly larger and more substantive change for everyone in the legal ecosystem and beyond. 

Presenters:
John Spinnato, Axiom Lawyer, NAACP Foundation Board Member
Selene Costello, Axiom Lawyer, DEI Strategist
LeMonte McGraw, SVP & Global Head of IT at Axiom

Moderator:
Catherine Kemnitz, SVP & Global Head of Legal at Axiom

By submitting the form below, you are opting in to receive communication from Above the Law and its partners.

More than 345 people, including 100 licensed medical professionals, were charged in what the Department of Justice called its largest healthcare fraud enforcement action to date. The massive investigation found more than $6 billion in alleged fraud from telemedicine, substance abuse treatment facilities and opioid distribution schemes.

Roughly $4.5 billion of the total was tied to kickback schemes involving telemedicine. Companies allegedly paid doctors and nurse practitioners to order unnecessary medical equipment, tests or pain medication. In exchange, they received kickbacks from medical equipment suppliers or genetic testing laboratories, according to the DOJ report.

For example, in one case investigated by prosecutors in Florida, New Jersey and Southern California, two San Diego men were charged with conspiracy for reportedly paying kickbacks for durable medical equipment claims, which they submitted to Medicare and other programs.

The claims were generated using telemarketing along with paying kickbacks to telemedicine doctors who rarely spoke with the patients. According to the U.S. Attorney’s Office for the Middle District of Florida, they had at fraudulently established at least 22 medical equipment companies across the state.

In another case, the owner of a telemedicine company pled guilty for a kickback scheme that involved paying call centers and healthcare professionals in exchange for ordering Medicare patients medically unnecessary genetic cancer screening tests. The case, brought by the U.S. Attorney’s Office for the District of New Jersey, attributed roughly $414 million of healthcare fraud to this scheme.

“Telemedicine can foster efficient, high-quality care when practiced appropriately and lawfully.  Unfortunately, bad actors attempt to abuse telemedicine services and leverage aggressive marketing techniques to mislead beneficiaries about their health care needs and bill the government for illegitimate services,” HHS Deputy Inspector General Gary Cantrell said in a news release.  “Unfortunately, audacious schemes such as these are prevalent and often harmful.  Therefore, collaboration is critical in our fight against health care fraud.”

Separately, the CMS Center for Program Integrity announced it would revoke the Medicare billing privileges of 256 additional healthcare professionals for their involvement in telemedicine schemes.

The American Telemedicine Association (ATA), which has been lobbying for expanded coverage of telehealth, said it was “appalled” at these schemes and emphasized that they do not represent legitimate telemedicine practices.

“Covid-19 has driven unprecedented demand for telehealth services as patients seek more convenient care, but historic legacies of ‘pill mills,’ illegal online pharmacies, or illicit telemarketing schemes to defraud Medicare have rightly led to concern. It is important to note that these examples of illegal operations are not legitimate telemedicine services,” ATA CEO Ann Mond Johnson said in a statement. “We agree that it is critical to differentiate between telehealth providers and fraudulent outfits as the latter can threaten public confidence in new technologies and care models that benefit growing numbers of patients and providers.”

Photo credit: Feodora Chiosea, Getty Images

2020 has had no shortage of surprises — and not all of the surprises are bad.

In Biglaw, the latest big surprise is that in the middle of a pandemic and a recession, law firms are paying special bonuses. You can call them “appreciation bonuses,” which is the name bestowed upon them by Cooley, which kicked off the trend. You can call them “special bonuses,” the term used by Davis Polk, which issued the bonus scale that’s most widely used right now. But no matter what you call them, the bonuses are great news for associates — as well as quite surprising.

I certainly didn’t expect this plot twist in the story of Biglaw. To the contrary, in August, I predicted that bonuses would be down this year. But now we know that they won’t be; Cooley, Davis Polk, and other fall-bonus firms have already declared that 2020 year-end bonuses will be at least as generous as 2019 year-end bonuses.

Not all firms, however, have followed the fall-bonus trend. Kirkland & Ellis, traditionally a compensation leader, announced that it won’t be paying fall bonuses — but did promise that it would “take into account … the fall bonuses paid by any other firm” when calculating year-end bonuses. That was better news for associates than word from Cravath, also traditionally a compensation leader, which similarly declared that it won’t be paying special bonuses — but unlike Kirkland, Cravath made no mention of taking into account fall bonuses when setting the year-end bonus scale.

And then there are the many, many firms that have not made an announcement of any sort on fall bonuses. For a comprehensive roundup of the bonus announcements that have been made, check out ATL’s special bonus tracker.

What factors go into firms’ decisions on special bonuses? There are basically three: performance, peer pressure, and publicity.

1. Performance. This is, of course, the most important factor. The firms that are willing and able to pay fall bonuses are all doing well — or at least well enough — during the pandemic.

As Zeughauser Group consultant Kent Zimmermann predicted to Dan Packel of the American Lawyer, for the year of 2020, “a small set of firms will show an impressive jump in PEP [profit per equity partner], while more than half the market will be within 5% of last year’s numbers (up or down), and a third set, comprising roughly 20% of the market, will exhibit a steeper decline.” This seems about right to me, based on my own observation of the industry and conversations with law firm leaders.

The firms paying fall bonuses are almost all in either (1) the first group of firms that could see an increase in profits per partner this year (sorry, it’s always going to be “PPP” to me, not “PEP”), or (2) the second group of firms, slightly up or slightly down.

The firms in the third group, which are really hurting right now, are not in the bonus-paying group (or, if they are, they shouldn’t be). Indeed, instead of paying bonuses, some of these suffering firms might still have austerity measures in place.

2. Peer pressure. If some firms decided to pay fall bonuses despite shaky financials, then they probably did so out of peer pressure — traditionally a major factor, and sometimes the only factor, in many firms’ bonus decisions. The flurry of announcements in the wake of the Davis Polk announcement can be chalked up to Biglaw’s “keeping up with the Davises” mentality.

It’s worth noting, however, how many firms have either not announced anything or have announced they won’t be joining the fall-bonus party. Which takes us to the third and final factor.

3. Publicity. The decisions by Kirkland and Cravath not to pay fall bonuses were surely not driven by financial considerations. Kirkland must be having an excellent year, thanks to its market-leading bankruptcy practice, and while Cravath might not be doing as well, it’s still Cravath.

Instead, Cravath and Kirkland probably felt it wouldn’t be great, from a public-relations perspective, to be paying our special bonuses during a pandemic and a recession whose full extent remains to be seen. This concern for appearances is hinted at in the Cravath memo, which alludes to “this ongoing pandemic and all its challenges for our communities.” It’s made more explicit in the Paul Weiss memo, issued earlier today: “So many of our clients and others across our community are experiencing unprecedented economic trauma, including the shuttering of their businesses and the loss of hundreds of thousands of jobs, as a direct result of this pandemic. Providing a special cash reward in direct response to the pandemic does not feel right at this time.”

I wouldn’t be surprised if clients of these firms, especially general counsels at companies that have taken major hits during the downturn, expressed their displeasure over fall bonuses to Kirkland, Cravath, Paul Weiss, and other firms that have either announced they won’t be paying fall bonuses or have yet to announce. Paying bonuses to twenty-something lawyers during a time of national crisis isn’t a great look.

But you know what’s also not a great look? Millionaire partners taking home even more millions because their law firms remained busy during the pandemic, while many of their expenses — everything from travel to client entertainment to utility costs for their offices — went down or went away entirely. I suspect that one reason law firm partners have shared the wealth with their associates, in addition to a desire to express appreciation and support during challenging times, is that if they didn’t pay out such bonuses, the partners would end up doing obscenely well. In-house lawyers read the American Lawyer too — and they will notice next spring when certain firms report significant increases in PPP during a pandemic.

So for firms that are doing well right now, there’s a “damned if you do, damned if you don’t” problem regarding fall bonuses. If you pay them, you might look bad to some of your clients now; but if you don’t pay them, you might look bad to some of your clients later (and your associates will be unhappy too).

Having to hide how well you are doing: in the midst of a pandemic and a recession, it’s a good problem to have.

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David Lat, the founding editor of Above the Law, is a writer, speaker, and legal recruiter at Lateral Link, where he is a managing director in the New York office. David’s book, Supreme Ambitions: A Novel (2014), was described by the New York Times as “the most buzzed-about novel of the year” among legal elites. David previously worked as a federal prosecutor, a litigation associate at Wachtell Lipton, and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@laterallink.com.

“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. That should not be a controversial proposition. Remarkably, however, the Justice Department seeks to prove it wrong.”

Thus begins the latest motion in author E. Jean Carroll’s defamation suit against the president, whom she accused of raping her in a Bergdorf Goodman’s dressing room 25 years ago. Clearly Roberta Kaplan, a partner at Kaplan Hecker & Fink LLP, did not come to play.

After Carroll went public with her claims about the president, Trump made multiple public statements, going beyond denying the claim to impugning her motive, accusing her of making up a series of false allegations, and even going so far as to suggest she wasn’t attractive enough to rape.

“I’ll say it with great respect,” he told reporters on June 24, 2019. “Number one, she’s not my type. Number two, it never happened. It never happened.”

With great respect.

Carroll filed her original claim in New York State court, where she’s been chasing Trump around since November of 2019. First he ducked service of process; then he claimed no personal jurisdiction; finally he tried to assert the invisibility cloak of “absolute presidential immunity.” When all those defenses failed and the state court finally ordered him to submit to discovery — including a cheek swab to match to the male DNA on the dress Carroll wore the day of the alleged assault — the president’s legal team hatched another evasive maneuver.

Well, not the president’s legal team, exactly. The American people’s legal team, which has currently been coopted by Bill Barr to serve as Donald Trump’s private law firm. On September 8, the Justice Department removed the case to federal court under the Federal Tort Claims Act and the Westfall Act, substituting the federal government as a defendant by claiming that speaking to the media, and calling Carroll and unrapable ugly duckling, were part of his job.

The assertion that publication of defamatory statements to a third party is totally kosher if that third party is a member of the media is, on its face, ridiculous. As Kaplan points out, “No legal authority holds that elected officials may — within the scope of their federal employment — defame anyone, at any time, for any reason, no matter how personal their motives or statements, so long as a journalist overhears them.”

And yet, James G. Touhey, Jr., Director of the Torts Branch at the DOJ’s Civil Division attested that “Defendant Donald J. Trump was acting within the scope of his office as the President of the United States at the time of the alleged conduct.”  Which is no doubt a prelude to arguing that the federal government hasn’t waived immunity for defamation, so too bad, so sad, Carroll’s suit must fail.

Or perhaps not. In yesterday’s brief, Kaplan notes that the FTCA applies only to “officers or employees of any federal agency.” The DOJ has consistently argued that Donald Trump is king of kings, and lord of lords, able to order up investigations into his enemies and kill prosecutions of his friends at will and blessed with magical immunity from legal process, so it’s pretty rich to put forward the “your humble servant” defense this late in the game.

But even if the FTCA does hold, Kaplan argues, the harm occurred in New York, and thus that state’s tort rules apply. Which means that New York law determines whether defamatory conduct is within the scope of “employment.” And — spoiler alert! — it isn’t.

Which comports not only with precedent, but with actual common sense. As Kaplan’s brief notes, “[I]t is inconceivable that Trump’s employers—a.k.a., the American people—expect his job to include viciously defaming a woman he sexually assaulted. In asserting otherwise, the Justice Department opines that elected officials always act within the scope of their office when speaking with the press, even about personal matters.”

But the federal courts will probably allow the president to argue about it for at least another six months, allowing him to put off handing over a sample of his DNA until after the election. Which is as good as a win for Bill Barr’s main (perhaps only) client, Donald Trump.

Wonder why Trump is so dead set against that cheek swab, since it would definitively prove that his DNA is not on Carroll’s dress. Probably for the same reason that his son Eric refuses to show the New York Attorney General that tax return showing that the Trump Organization really did pick up $102 million of imputed income after Fortress Capital agreed in 2012 to take $48 million in satisfaction of a $150 million debt. They could easily disprove those scurrilous allegations, but they’re fighting tooth and nail against it for… reasons.

Anyway, aren’t you glad you made your estimated quarterly income tax payments a couple weeks ago so that Bill Barr wouldn’t run out of cash for Donald Trump’s legal defense? Was it more than $750? LOL, SUCKERS.

MEMORANDUM OF LAW IN OPPOSITION TO MOTION TO SUBSTITUTE THE UNITED STATES AS DEFENDANT [Carroll v. Trump, No 1:20-cv-07311-LAK (S.D.N.Y. October 5, 2020)]

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Elizabeth Dye lives in Baltimore where she writes about law and politics.