Attorneys for E. Jean Carroll filed a memorandum of law on Monday evening in an attempt to convince a federal court that the Department of Justice should not be permitted to substitute itself in as a defendant in Carroll’s defamation lawsuit against President Donald Trump.
The argument began with a striking line: “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.” This was a response to the DOJ argument that President Trump was “acting within the scope of his office as President of the United States” when he called Carroll’s rape accusation a lie.
Carroll is a former Elle columnist who alleged that Trump sexually assaulted her in the 1990s in the dressing room of a Bergdorf Goodman department store. The president previously denied the accusation, saying, “I’ll say it with great respect. No. 1, she’s not my type. No. 2, it never happened. It never happened, O.K.?”
“Totally lying. I don’t know anything about her. I know nothing about this woman. I know nothing about her. She is — it’s just a terrible thing that people can make statements like that,” he added.
Carroll claimed that Trump defamed her when he said that she was lying about being raped to sell more books. She also said it was a lie that Trump didn’t know who she was (the lawsuit included a photo of them at a party in 1987). After months and months litigating in state court, Carroll’s team took advantage of the July 2020 Supreme Court decision in Trump v. Vance. The high court held that the president was not absolutely immune to the state criminal process.
The plaintiff and her attorneys argued that Trump was not entitled to special treatment given the Supreme Court’s decision. The state judge presiding over the Carroll-Trump matter found that the Supreme Court decision was applicable to the state civil case. The judge declined to issue a stay, ruling that the case should move forward to discovery. The president had argued that the litigation should remain paused pending the outcome of a similar case filed by former Apprentice contestant Summer Zervos.
Just when it looked like Trump might have to produce his DNA (Carroll has claimed that the “Donna Karan coat-dress” she was wearing at the time of the alleged rape has been hanging on the back of her closet door and remained “unworn and unlaundered since that evening”), the DOJ stepped in and tried to remove the case out of state court and into federal court. This was a move largely seen as attempt to have the entire case tossed out—again on immunity/special treatment grounds.
The DOJ cited the Westfall Act as its legal authority, claiming that Trump was “acting within the scope of his office or employment at the time of the incident out of which the claim arose […].”
Carroll’s lawyers argued, first of all, that it is nonsense to argue that Trump’s job description includes calling rape accusers liars—thereby entitling him to a taxpayer-funded defense from the DOJ:
That should not be a controversial proposition. Remarkably, however, the Justice Department seeks to prove it wrong. At the behest of the White House, and following a certification from the Attorney General pursuant to the Westfall Act, 28 U.S.C. § 2679(d), federal lawyers have moved to substitute the United States of America as the defendant in this action. They assert that Defendant Donald J. Trump was acting within the scope of his employment as President when he defamed Plaintiff E. Jean Carroll, a woman he sexually assaulted over twenty years ago, as retaliation for revealing his misconduct.
Trump’s defamatory lies included assertions that Carroll had falsely accused other men of rape; that she was lying about him as part of a secret political conspiracy; that she had fabricated her accusation to sell books; and that he had never met her (despite a photograph of them together).
Trump also remarked, “she’s not my type.” Compl. ¶ 97. These are the statements that the Justice Department asks the Court to find that Trump uttered within the scope of his duties as President.
The attorneys also argued that, contrary to what Attorney General Bill Barr had to say on the matter, that the Federal Tort Claims Act “as amended by the Westfall Act” doesn’t apply to Trump:
The Justice Department’s motion should be rejected for two reasons. First, the statute cited in support of the Attorney General’s certification—namely, the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671 et seq., as amended by the Westfall Act, 28 U.S.C. § 2679(b)—does not apply to the President. This is clear from the plain text of the statute, which encompasses a wide range of federal employees yet conspicuously offers no basis for covering the President. That textual conclusion is confirmed by a host of constitutional, statutory, legislative, judicial, and executive branch authorities. The bottom line is that the President enjoys absolute immunity from damages claims based on conduct within the outer perimeter of his official responsibilities, but is not shielded by the FTCA for tortious acts committed within the scope of his employment.
The plaintiff reiterated that it is “inconceivable that Trump’s employers—a.k.a., the American people—expect his job to include viciously defaming a woman he sexually assaulted.”
Carroll asked the court to reject DOJ’s “extreme position” and to reject the DOJ motion to substitute itself as the defendant in place of Trump.
“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. ‘Public office does not carry with it a license to defame at will, for even the highest officers exist to serve the public, not to denigrate its members,'” the filing said. “If accepted, the Justice Department’s extreme position would distort the law and dishonor the Office of the Presidency. This Court should therefore deny the motion to substitute.”
Read the full filing below:
[image of Carroll via Astrid Stawiarz/Getty Images for Glamour; image of Trump via JIM WATSON/AFP/Getty Images]
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