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