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DOJ's move to defend Trump in defamation suit isn't without precedent

Analysis: E. Jean Carroll now has the burden of showing that DOJ’s taking the case was improper by showing Trump wasn’t acting in the scope of his employment.
Image: President Trump holds a campaign rally at Smith Reynolds Regional Airport in Winston-Salem, North Carolina
President Donald Trump concludes a campaign rally at Smith Reynolds Regional Airport in Winston-Salem, N.C., on Sept. 8, 2020.Jonathan Ernst / Reuters

E. Jean Carroll was quick to respond to the Department of Justice’s move to defend President Donald Trump against her defamation lawsuit, tweeting that it was “UNPRECEDENTED.”

“TRUMP HURLS BILL BARR AT ME. Just when @realDonaldTrump is required to produce documents and DNA in discovery, he sics the DOJ on us. THIS IS UNPRECEDENTED!!” Carroll tweeted shortly after the filing on Tuesday.

But this is not “UNPRECEDENTED.” It happens fairly often that DOJ substitutes the United States for an individual federal employee in a lawsuit. Moreover, courts usually permit the DOJ, as Carroll might put it, to “sic” itself on state court plaintiffs.

Carroll’s lawsuit alleges Trump sexually assaulted her in the 1990s and, more recently, that he damaged her reputation when he forcefully denied her allegations.

The Justice Department removed Carroll’s lawsuit against Trump from state court to federal court in New York, adding that because it was swapping the United States for Trump as a defendant, the DOJ would handle the defense.

A federal law known as the Westfall Act, gives federal employees “absolute immunity” from lawsuits like these based on conduct “in the course of their official duties.”

All it takes is a “certification” by the attorney general that a federal employee “was acting within the scope of his office or employment at the time” of the alleged conduct (a “scope certification”). Then, the United States is substituted for the employee as the defendant, and the DOJ defends the case.

This substitution not only immunizes the employee, it also allows the new defendant, the United States, to take advantage of sovereign immunity, including limitations on lawsuits that an individual defendant wouldn’t have. These include a trial by the court (instead of a jury), a two-year federal statute of limitations, the unavailability of punitive damages, and a bar to certain kinds of tort actions, including, notably, libel and slander.

Carroll cannot get the case returned to New York state court, her preferred forum. Once the DOJ files the certification and removes the case under the Westfall Act, the case stays in federal court, even if the certification is later discovered to be erroneous or mistaken.

Carroll can challenge the DOJ’s decision to defend the president. The DOJ’s scope certification is “the first, but not the final word” on whether the federal officer is immune, and whether the United States and not the president is the appropriate defendant.

Carroll has the burden of showing that certification was improper, by alleging specific facts showing that the president wasn’t acting in the scope of his employment.

The federal court can then strike the DOJ’s certification to the extent it finds that the president was not in fact acting within the scope of his employment. In making this determination, the court will apply New York law defining “scope of employment.”

There is no single mechanical test to determine whether at a particular moment an employee is engaged in the employer's business, but the overall question is whether the employee was acting not on his own behalf, but in the “employer's” service. New York courts have not required a showing that the employer anticipated specifically defamatory conduct, as long as the employer could reasonably have expected the general type of conduct.

On the other hand, New York courts have also held that an employee does not act within the scope of his employment when he engages in intentionally harmful conduct for personal reasons separate and distinct from the interests of his employer.

The analysis is made more complicated because, unlike with other federal employees, It’s hard to say who Trump’s “employer” is. Is it the executive branch? Is it the American citizenry? Another Trumpian complication is this: when courts speak of the foreseeability of the employee’s bad conduct, it’s hard to argue that potentially defamatory statements are completely unexpected from Trump as the president.

The DOJ points to an example, a case in which a congressman gave phone interviews to a reporter about his separation from his wife. During one call, he said his wife became uncomfortable in Washington, D.C., living across the street from the headquarters of an Islamic-associated nonprofit after the 9/11 attacks, calling the nonprofit a "fund-raising arm for Hezbollah." When those remarks were published, the nonprofit sued for defamation. The D.C. Court of Appeals applied D.C. law (not New York law) and held that “speaking to the press during regular work hours in response to a reporter's inquiry falls within the scope of a congressman's authorized duties.”

For a plaintiff such as Carroll, reversing the DOJ’s one-sided decision to swap out the United States for an individual defendant is an uphill battle. Yet, this particular case is still a close call. If a court takes the view that the president is the president at all times, it might conclude that statements on a purely personal matter are still within the “scope” of his employment.

If the president was only speaking for personal purposes, about a personal matter that predated his presidency, a court might find that none of this conduct fell within the scope of his employment. Then, the president will be left to defend this case against Carroll as an individual, without the help of the DOJ.