Barr's
defense of Trump in E. Jean Carroll's suit could give presidents carte blanche
Oct. 21, 2020,
4:00 AM CDT
If
President Donald Trump and the Justice Department have their way, presidents
will be legally permitted to defame anyone during their four (or eight) years
in office.
On
Wednesday, a federal judge in Manhattan will hear arguments on the
Justice Department's motion to substitute the United States for Trump
as the defendant in a defamation suit. The Justice Department filed a reply
brief Monday, arguing that Trump's conduct occurred within the scope of his
employment because federal elected officials have a "responsibility to
communicate regarding matters of concern or interest to their
constituents."
The
lawsuit was filed by
journalist E. Jean Carroll, who alleged in a 2019 book that Trump raped her in
the 1990s in the dressing room of a New York department store. Trump
denied the allegations, adding that Carroll had falsely accused other men of rape,
that she had a political motive, that he had never met her, that she had
fabricated the allegations to sell books and that she was "not my
type." Carroll
claimed that Trump defamed her in 11 specific statements.
The
key issue before the judge Wednesday is whether Trump acted within the scope of
his federal employment when he made the allegedly slanderous comments. The law
permits the Justice Department to remove tort cases from state court to federal
court and to substitute the United States as the defendant when a federal
employee is sued for acts committed within the scope of his employment. For
example, in a case alleging negligence against a national park ranger who was
involved in an accident while on duty in his government vehicle, the Justice
Department would certify that the employee was acting in the scope of his
employment at the time of the accident and would move to substitute the United
States as the defendant. If the court were to agree, then the United States
would assume any liability, and taxpayers would cover the legal fees and any
money damages for the plaintiff.
In
this case, the consequences of the decision about scope of employment are huge.
That's because the United States enjoys sovereign immunity for defamation
claims. Under the Federal
Tort Claims Act,
the federal government has consented to be sued for certain torts, such as
negligence, but not for defamation. That means that if the court agrees that
Trump was acting within the scope of his employment and permits the United
States to be substituted as the defendant, then Carroll's lawsuit will be
dismissed altogether.
Whether
an act occurred within the scope of a person's employment depends on two
factors. First, the court will look at whether the employee was acting to
promote the employer's interest. Second, the court will consider whether the
act was the type of conduct the employee was hired to perform. It can hardly be
said that Trump's comments about Carroll advanced the interests of the United
States or that making allegedly slanderous remarks is the type of conduct that
Trump was elected to perform.
In
its brief, the Justice Department argued that the court should focus on Trump's
conduct in communicating and not the content of Trump's statements. Denying
allegations that a federal elected official is unfit to serve, the Justice
Department argued, is within the scope of that official's employment. And
because a president is always on duty, then every statement is covered. But
even if this argument has any merit, the facts here present more than just a
denial. Trump didn't simply rebut the accusations. He went out of his way to
add insult to injury, accusing Carroll of fabricating the allegations to sell
books, falsely accusing other men of rape and having a political agenda, among
other things. If the court finds that any one of those statements was made
outside the scope of Trump's employment, then it will deny the motion to
substitute the United States as the defendant.
Such a result would permit a president to defame his political
opponents without any legal limitations.
The
court should also consider the long-term implications of the Justice
Department's arguments. If a president acts within the scope of his employment
whenever he communicates, then he can never be sued for any statement, and all
future presidents would effectively be immune from claims of defamation. To
find in the president's favor on this motion would give him and all future
presidents carte blanche not only to deny allegations against them, but also to
make their own false allegations against others without consequence. Such a
result would permit a president to defame his political opponents without any
legal limitations. In a re-election campaign, a president would be permitted to
defame his opponent, who would lack the legal right to reciprocate.
The
president already has a bully pulpit. We don't need to elevate it above the
laws that apply to everyone else.
