Is Trump immune in defamation suit over rape denial? It’s too soon to decide, top DC court says

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Trials & Litigation Is Trump immune in defamation suit over rape denial? It's too soon to decide, top DC court says

By Debra Cassens Weiss

April 14, 2023, 11:48 am CDT

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Writer E. Jean Carroll talks to reporters in March 2020 outside a courthouse in New York. Photo by Seth Wenig/The Associated Press.

The top court for Washington, D.C., declined to say Thursday whether former President Donald Trump was acting within the scope of his presidential employment when he denied rape claims by writer E. Jean Carroll.

The answer to that question—which determines whether Trump could be held personally liable in Carroll’s defamation lawsuit—is “a fact-intensive question for the factfinder,” the full District of Columbia Court of Appeals said in its April 13 decision. The question “cannot be resolved as a matter of law in either party’s favor on the record before us.”

Bloomberg Law, Courthouse News Service, Law360, Reuters and Law.com are among the publications with coverage.

Carroll has alleged that Trump defamed her by denying he raped her and by implying she made the claim to make money or advance a political agenda. Carroll has claimed that the rape happened in a Bergdorf Goodman dressing room in New York City in the 1990s.

“I’ll say it with great respect: Number one, she’s not my type,” Trump had said. “Number two, it never happened. It never happened.”

Trump could be protected by the federal law known as the Westfall Act, which provides that the United States should be substituted as a defendant in tort suits against federal employees acting within the scope of their employment. Usually, recovery in such cases is allowed only against the United States, which has generally waived sovereign immunity under the Federal Tort Claims Act.

But the United States has not waived sovereign immunity in defamation claims, which means that Carroll could not recover anything if the United States is substituted as a defendant.

The 2nd U.S. Circuit Court of Appeals at New York had ruled in September 2022 that Trump was a government employee when he denied the rape claim. But the 2nd Circuit asked the top D.C. court to decide whether Trump was acting in the scope of employment under the laws of the District of Columbia.

“It is not at all clear to us” that the Westfall Act “requires an answer to this scope-of-employment question as a matter of law at this preliminary stage,” the D.C. Court of Appeals said. “To the extent that it does, then we have no special expertise in answering that question.”

The appeals court went on to address the standard followed in Washington, D.C. The court said the district generally applies the scope of employment test in the Restatement (Second) of Agency.

That test requires that the conduct at issue be “actuated, at least in part, by a purpose to serve” the employer.

According to Bloomberg Law, that test has been “embraced by Carroll’s attorneys.” Bloomberg Law also noted that the D.C. Court of Appeals “also declined to adopt a sweeping rule that elected officials always act within the scope of their employment when they talk to the press.”

Chief Judge Anna Blackburne-Rigsby wrote the majority opinion.

A lawyer for Trump, Alina Habba, issued a statement to several publications.

“Now that the D.C. Court of Appeals has clarified the certified question before it, we are confident that the 2nd Circuit will rule in President Trump’s favor and dismiss Ms. Carroll’s case in its entirety,” Habba said.

Trump is also facing a second suit that was filed by Carroll in November 2022 under New York’s Adult Survivors Act. The law gives adults alleging sexual assault a one-year window to sue. That suit alleged battery and additional instances of libel over a statement that Trump made in 2022.

The trial date in the second suit is April 25.

See also:

ABAJournal.com: “Federal judge rejects Trump’s quid-pro-quo DNA offer in suit by rape accuser”

ABAJournal.com: “DOJ files rare request to represent Trump in columnist’s defamation lawsuit”

ABAJournal.com: “Afternoon Briefs: Author sues Trump for defamation; court tosses bias suit by white male lawyer”

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