I’ve been getting a lot of questions about Jean Carrol’s case. Here is an explainer.
Jean Carroll’s case is a defamation case. This isn’t a rape case. This is an important distinction because the rape is outside the statute of limitations. What happened was this: After Trump became president, Jean Carroll said he raped her and he called her a liar (and made other defamatory comments). She sued for defamation. Because truth is a defense to an allegation of defamation, a trial would be about whether the rape occurred. She says that a DNA test would prove whether or not the rape occurred.
The law, in a nutshell: The Federal Employees Liability Reform and Tort Compensation Act of 1988—more commonly known as the Westfall Act—stipulates that federal employees retain absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties. That immunity extends to both “negligent” and “wrongful” acts. (Description taken from an article by lawyer Bradley Moss.)
This is from the government’s brief, explaining why the government took the position it did:
It’s easy to check the government’s legal reasoning: Look up the cases they cite to see if they indeed support the conclusion that courts in the past have found statements like Trump’s to be part of his employment.
So I did it. Me = 🤓
The first case the government cites is Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) You can read it here. Fun fact: You no longer need a subscription to a legal database to read these cases. Professor Google keeps them all handy for public consumption.
The facts look somewhat similar. An elected official answered questions about his personal life and was sued for defamation. In this case, a congressman, fielding questions about his personal life, made an utterance about Islam for which he was sued for defamation by a nonprofit (NGO) whose stated goal is to promote a positive image of Islam in the United States. The Congressman was talking about his marriage and said his wife didn’t like living across from the Council on American-Islamic Relations after 9/11.
The court said the remarks were within the scope of employment, even though they were not discussing government or policy. It was purely personal, but the court said he was acting within the scope of his employment because the press often asks politicians personal questions.
Akiva Cohen came up with a legal argument Jean Carroll might use: she can argue that the Westfall Act doesn’t apply to the president. You can see it here.
Someone asked Akiva this question, and he gave this answer:
A counterargument made by lawyer Mark Zaid would be whether we want a president forced to respond to allegations of defamation. It’s easy to see such a loophole being abused by people who want to harass other presidents for remarks that offend someone. (The issue remember is whether a president should be subjected to tort claims for things he says while president.) Another consideration is whether Congress actually intended to place the president at greater liability than federal officials.
The Fifth Circuit just held the fol;owing: President of the United is an employee of the government under the Westfall Act and in responding to Carrol’s accusation, he was within the scope of his employment. You can read the decision here.
The court then CERTIFIED the question to the D.C. Court of Appeals, which means they will make a final decision.
