Politico reports, Federal appeals court punts on writer’s suit against Trump over rape denial:
A federal appeals court handed Donald Trump an incremental win Tuesday in a libel suit brought by writer E. Jean Carroll over the former president’s denial of her claim that he raped her in a New York department store dressing room in the 1990s.
A divided panel of the 2nd Circuit Court of Appeals ruled that a lower court judge erred when he concluded that Trump, as president, was not covered by a federal law that can be used to shield federal employees from liability over incidents related to their work.
Under Trump, the Justice Department belatedly invoked that law — known as the Westfall Act — in a bid to shut down the defamation case Carroll filed in 2019 stemming from statements Trump issued denying that he raped Carroll, including a declaration that “She’s not my type.” Last year, under President Joe Biden, the Justice Department stirred controversy by reaffirming the department’s earlier stance that Trump was essentially immune from suit because he was acting within the scope of his duties when fielding media questions about the alleged rape at the Bergdorf Goodman in 1995 or 1996.
In Tuesday’s ruling, the majority on the three-judge federal appeals court panel asked a local court in Washington, the District of Columbia Court of Appeals, to weigh in on whether Trump’s statements are the sort of actions that employers can be held liable for under D.C. law. If not, Trump could be personally responsible for any damages awarded in the case.
The 2nd Circuit’s majority opinion said there was “manifest uncertainty” about when what the law regards as an intentional act, like libel or slander, is considered part of an employee’s duties.
“The District’s case law has, thus, seemed to vacillate between a narrow view of scope of employment that requires evidence that an intentional tort benefit—or be for the purpose of benefiting—the employer, and a more modern, broader view of scope of employment that would hold that any intentional tort that is a part of the risks of an employer’s activity falls within the scope of employment,” Judge Guido Calabresi, an appointee of President Bill Clinton, wrote in an opinion joined by Judge William Nardini, a Trump appointee.
The third judge on the panel, Denny Chin, dissented. He agreed with Carroll’s lawyers that the law protecting federal employees from liability simply does not apply to the president. And he said at least some of Trump’s statements were not part of his official duties.
“Trump was not acting in the scope of his employment when he made comments about Carroll and her accusations because he was not serving any purpose of the federal government,” Chin wrote. “In the context of an accusation of rape, the comment ‘she’s not my type’ surely is not something one would expect the President of the United States to say in the course of his duties. Carroll’s allegations plausibly paint a picture of a man pursuing a personal vendetta against an accuser, not the United States’ ‘chief constitutional officer’ engaging in ‘supervisory and policy responsibilities of utmost discretion and sensitivity,’” the judge added, quoting an earlier precedent.
Chin, an appointee of President Barack Obama, said the Justice Department’s arguments that a president could claim immunity for virtually any statement made to the press were too broad. The judge also selected some notable examples of things a president might theoretically be responsible for.
“If that were so, then the mere presence of others would neutralize whatever a President did or said, for no President could be held accountable for damage done in front of a microphone or in an official meeting — whether defaming a citizen, exposing classified national security information, or inciting a riot. This is not, and should not be, the law,” Chin wrote.
The well-reasoned Chin dissent should inform the further proceedings of the trial court.
The Justice Department, Trump’s private attorneys or Carroll’s lawyers could ask the full bench of the 2nd Circuit to reconsider the issue or seek review from the Supreme Court. They could also wait to see what position the D.C. Court of Appeals takes in the case during what is likely to be many more months, if not years, of litigation.
Carroll lawyer Roberta Kaplan endorsed Chin’s dissenting opinion, calling it “powerful.” In a statement, she said she was “confident” that the D.C. appeals court would agree that Trump’s statements were unrelated to his job.
Carroll’s libel suit may wind up being of secondary concern to Trump, since she has signaled she plans to file a new suit in November that directly accuses Trump of rape and seeks damages for the alleged attack itself. A New York state law set to take effect in November allows plaintiffs such as Carroll to pursue civil cases over sex crimes that would otherwise be subject to a 20-year statute of limitations.
The Washington Post reports, E. Jean Carroll plans to sue Trump using new N.Y. sexual assault law:
Writer and columnist E. Jean Carroll, who has maintained that Donald Trump sexually assaulted her once during the 1990s, plans to sue the former president under a New York law that lets sexual assault victims file suit years later, she said in court records filed Tuesday.
In late May, New York Gov. Kathy Hochul (D) signed into law the Adult Survivors Act, which will give adult sexual assault survivors up to one year to file a lawsuit regardless of when the alleged violation happened.
In the court documents filed Tuesday in her ongoing defamation case against Trump, Carroll’s attorney Roberta A. Kaplan told a New York federal judge that her client intends to file a lawsuit against Trump “as soon as that statute authorizes us to do so.” Carroll can sue under the Adult Survivors Act as of Nov. 24.
Carroll — who in 2019 recounted the alleged assault in an excerpt of her book — previously hadn’t been able to press charges because the statute of limitations had passed. Trump has repeatedly denied the allegations.
Kaplan declined to comment when reached by The Washington Post. Trump’s attorney Alina Habba did not immediately respond to a request for comment.
Carroll, whom Trump has called a liar, is in the middle of an ongoing defamation suit against the former president following the published excerpt of her book where she first recounted the alleged assault.
In the excerpt, as she has claimed in her defamation suit, Carroll said she ran into the real estate developer at upscale department store Bergdorf Goodman in New York City in late 1995 or early 1996. They chatted and shopped together before Trump attacked her in a dressing room, she said. Carroll said he knocked her head against a wall, pulled down her tights and briefly penetrated her before she swiftly pushed him off and ran out of the store.
Carroll is seeking unspecified compensatory and punitive damages. Trump attempted to countersue, but a judge rejected the bid.
In the court documents filed Tuesday, Kaplan, Carroll’s attorney, alleges Trump has yet to cooperate in the discovery process. He “remains unwilling to produce” any evidence mandated by the court, Kaplan wrote. Carroll, though, is ready to produce over 30,000 pages of evidence requested by Trump’s defense, she added.
Discovery is going to be interesting in this case. Like Monica Lewinsky, E. Jean Carroll kept the dress, and reportedly, she says there is DNA evidence. Trump will have to give a DNA sample as well as a deposition under oath. Since he is not at risk of a criminal prosecution under the New York law, he cannot assert his fifth amendment privilege.
“To date, discovery in the above-mentioned defamation case has been entirely one way,” Kaplan wrote in August.
Kaplan has sought to consolidate Carroll’s defamation suit with the new lawsuit she is expected to file under the Adult Survivors Act. Habba has asked the judge to deny this, saying it would be “extraordinarily prejudicial” to Trump.
This case could be in court for years.