Justice Department wants to step in for Trump in E. Jean Carroll appeal
The Department of Justice wants to stand in for President Trump in his ongoing appeal of a defamation case that could cost him tens of millions of dollars.
Lawyers for the taxpayer-funded agency and Mr. Trump's personal attorneys said in a filing on April 11 that the Justice Department believes the federal Westfall Act shields Mr. Trump in the case, which has pitted him against the writer E. Jean Carroll.
A federal jury awarded Carroll $83.3 million in January 2024, after concluding that Mr. Trump made defamatory statements when denying that he sexually abused Carroll. That award came less than a year after a separate federal jury concluded Trump was liable for sexual abuse, and instructed him to pay her $5 million.
Mr. Trump has denied all of Carroll's allegations and appealed both cases.
The Justice Department asserts that Mr. Trump was acting in his official capacity as president when he made the allegedly defamatory statements about Carroll in 2019, and therefore the court is required to substitute the United States for Mr. Trump in the case. Under the Westfall Act, federal employees are entitled to absolute immunity from personal lawsuits for conduct occurring within the scope of their employment.
Legal scholar James Pfander said Mr. Trump still needs to show that his actions, publicly denying Carroll's claims, were within the scope of the presidency.
"As a legal issue ultimately for the courts, the [Justice Department's] certification alone does not decide the question," said Pfander, a Northwestern School of Law professor.
Pfander noted that the Westfall Act says it permits government employees to petition courts to certify they were acting within the scope of their office "at any time before trial."
"By allowing an employee to pursue certification but limiting the time to 'before trial,' the statute would seem to suggest that a motion to substitute at the appellate stage of the litigation comes too late," Pfander said.
A longtime advice columnist, Carroll published a book excerpt in New York magazine in 2019 accusing Mr. Trump of sexually assaulting her in a department store dressing room in the mid-1990s. Mr. Trump denied the allegations and called Carroll a "whack job." He claimed he had never met Carroll, accused her of "totally lying" and said, "she's not my type."
Mr. Trump would go on to repeat similar denials in public appearances, social media posts and depositions.
The Justice Department initially supported Mr. Trump's effort to have the case dismissed, arguing the Westfall Act protected Mr. Trump from liability because he was acting as a federal employee when he denied Carroll's allegations.
A lawyer for the department argued in 2021 — while Mr. Trump was out of office after losing the 2020 election to former President Joe Biden — that even though Mr. Trump "made crude and offensive comments in response to the very serious accusations of sexual assault" the law protecting employees from such a suit should be upheld.
The agency reversed its position in July 2023. An official for the Justice Department wrote at the time that the decision factored in the jury's conclusion in the $5 million case that Mr. Trump was liable for sexual abuse.
"The allegations that prompted the statements related to a purely personal incident: an alleged sexual assault that occurred decades prior to Mr. Trump's Presidency," former Principal Deputy Assistant Attorney General Brian Boynton wrote. "That sexual assault was obviously not job related."
Paul Figley, a former deputy director of the Justice Department's Torts Branch, said Boynton's decision was unexpected.
"I was very surprised by the withdrawal because we always viewed the president as behaving within the scope of office for anything he did," said Figley, an American University professor emeritus who worked at the Justice Department for more than three decades.
An exhibit included with the case's latest filing shows that the Justice Department, now under the purview of Mr. Trump, has again reversed course.
"I find that Donald J. Trump was acting within the scope of his office or employment at the time of the incidents out of which the plaintiff's claims arose," wrote Kirsten Wilkinson, the director of the agency's Torts Branch Civil Division.
Columbia Law School professor Caroline Polisi said she believes the decision fits a pattern within the Trump administration.
"This is not at all a surprising move for this Justice Department. Trump has shown time and time again that he considers this DOJ to be his personal attorney," said Polisi, a federal criminal defense attorney
"On their face, the comments at issue were purely personal in nature, and therefore outside of his scope of duties as president, thus excluding him from governmental immunity," said Polisi. "However, the fact that the former administration took the same position - at least initially - shows that the argument is not entirely frivolous, and that a court may entertain arguments on the issue."
The highest ranks of the Justice Department are filled with lawyers who just last year were Mr. Trump's personal attorneys, but Figley said Wilkinson does not fit that description. He noted she's risen steadily while serving through multiple administrations, before being appointed director in January.
"That appointment was an obvious choice, she'd been the deputy director in that office for many years, and the previous director retired," Figley said.
A lawyer for Mr. Trump also argued last year that the case should be dismissed due to a Supreme Court ruling granting presidents immunity from criminal prosecution for "official acts"while they are in office.
Roberta Kaplan, an attorney for Carroll, argued in a January brief that the Supreme Court's ruling did not apply to Carroll's claims.
"If there were ever a case where immunity does not shield a president's speech, this one is it," Kaplan wrote.
Kaplan declined to comment Wednesday on Mr. Trump's latest move, telling CBS News her response was forthcoming in opposition papers she expects to file next week.
