Less than one week after the Department of Justice tried and failed to make new arguments as to why E. Jean Carroll should be suing the United States and not Donald Trump in his personal capacity, a federal judge rejected DOJ’s attempted takeover of the defamation case.
Senior U.S. District Judge Lewis Kaplan, a Bill Clinton appointee, issued a decision on Tuesday, several weeks after the DOJ removed the Carroll case from state court to federal court in an attempt to substitute the U.S. as the defendant in place of Trump. That DOJ defense strategy, which Attorney General Bill Barr described as “routine,” was rejected. Recall: Attorney General Barr also said criticism of his move was a “little tempest” that was nothing more than the product of the “bizarre political environment” in which we live.
Judge Kaplan, in straightforward fashion, said that the DOJ went out of its way to erroneously argue that President Trump was acting within the scope of his office when he called Carroll’s rape accusation a lie.
“As explained above, the undisputed facts demonstrate that President Trump was not acting in furtherance of any duties owed to any arguable employer when he made the statements at issue. His comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States,” the judge said. “To conclude otherwise would require the Court to adopt a view that virtually everything the president does is within the public interest by virtue of his office. The government has provided no support for that theory, and the Court rejects it as too expansive.”
In short, Kaplan ruled, President Trump is not an “’employee of the Government’ within the meaning of the relevant statutes,” namely the Federal Tort Claims Act. But even if Trump was a covered employee, the judge wrote, making allegedly defamatory statements is not part of the job of the president.
“Even if he were such an ’employee,’ President Trump’s allegedly defamatory statements concerning Ms. Carroll would not have been within the scope of his employment,” he said. “Accordingly, the motion to substitute the United States in place of President Trump [Dkt. 3] is denied.”
Carroll’s lawyer Roberta Kaplan said in a statement that she and her client were “very pleased” that the judge “interpreted the plain text of Federal Tort Claims Act as not covering President Trump’s false statements about our client, E. Jean Carroll.”
“The simple truth is that President Trump defamed our client because she was brave enough to reveal that he had sexually assaulted her, and that brutal, personal attack cannot be attributed to the Office of the President,” Kaplan said. “Judge Kaplan’s words speak for themselves. As he observed: ‘A comment about government action, public policy, or even an election is categorically different than a comment about an alleged sexual assault that took place roughly twenty years before the president took office.'”
“In response to the Trump DOJ’s startling claim that virtually anything that Donald Trump says is within his scope of employment as president, the Court explained that ‘[a]ccepting [that position] would mean that a president is free to defame anyone who criticizes his conduct or impugns his character – without adverse consequences to that president and no matter what injury he inflicts on the person defamed,’” she added.
These were the statements Trump made about Carroll, as recounted by the judge:
On June 21, 2019, New York “Regarding the ‘story’ by E. Jean Carroll, claiming she once encountered me at Bergdorf Goodman 23 years ago. I’ve never met this person in my life. She is trying to sell a new book – that should indicate her motivation. It should be sold in the fiction section. Shame on those who make up false stories of assault to try to get publicity for themselves, or sell a book, or carry out a political agenda – like Julie Swetnick who falsely accused Justice Brett Kavanaugh. It’s just as bad for people to believe it, particularly when there is zero evidence. Worse still for a dying publication to try to prop itself up by peddling fake news – it’s an epidemic.
Ms. Carroll & New York Magazine: No pictures? No surveillance? No video? No reports? No sales attendants around?? I would like to thank Bergdorf Goodman for confirming that they have no video footage of any such incident, because it never happened.
False accusations diminish the severity of real assault. All should condemn false accusations and any actual assault in the strongest possible terms.
If anyone has information that the Democratic Party is working with Ms. Carroll or New York Magazine, please notify us as soon as possible. The world should know what’s really going on. It is a disgrace and people should pay dearly for such false accusations.”
The next day, June 22, 2019, a reporter at the White House confronted President
[Reporter:] Mr. President, you had said earlier that you never met E. Jean Carroll. There was a photograph of you and her in the late 1980’s —
[President Trump:] I have no idea who this woman is. This is a woman who has also accused other men of things, as you know. It is a totally false accusation. I think she was married — as I read; I have no idea who she is — but she was married to a, actually, nice guy, Johnson — a newscaster.
[Reporter:] You were in a photograph with her.[President Trump:] Standing with [my] coat on in a line – give me a break – with my back to the camera. I have no idea who she is. What she did is – it’s terrible, what’s going on. So it’s a total false accusation and I don’t know anything about her. And she’s made this charge against others.
And, you know, people have to be careful because they’re playing with very dangerous territory. And when they do that – and it’s happening more and more. When you look at what happened to Justice Kavanaugh and you look at what’s happening to others, you can’t do that for the sake of publicity.
New York Magazine is a failing magazine. It’s ready to go out of business, from what I hear. They’ll do anything they can. But this was about many men, and I was one of the many men that she wrote about. It’s a totally false accusation. I have absolutely no idea who she is. There’s some picture where we’re shaking hands. It looks like at some kind of event. I have my coat on. I have my wife standing next to me. And I didn’t know her husband, but he was a newscaster. But I have no idea who she is – none whatsoever.
It’s a false accusation and it’s a disgrace that a magazine like New York – which is one of the reasons it’s failing. People don’t read it anymore, so they’re trying to get readership by using me. It’s not good. You know, there were cases that the mainstream media didn’t pick up. And I don’t know if you’ve seen them. And they were put on Fox. But there were numerous cases where women were paid money to say bad things about me. You can’t do that. You can’t do that. And those women did wrong things – that women were actually paid money to say bad things about me.
But here’s a case, it’s an absolute disgrace that she’s allowed to do that.”
President Trump commented on the story a third time on June 24, 2019, when he gave an interview to The Hill. As relevant here, he stated: “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened, OK?”
Roberta Kaplan said that she was looking forward to litigating against Trump in his personal capacity in federal court.
Carroll said in a statement that she was “speaking out against an individual” when she accused Trump of raping her in a department store dressing room back in the ’90s.
“When Donald Trump called me a liar and denied that he had ever met me, he was not speaking on behalf of the United States,” she said. “I am happy that Judge Kaplan recognized these basic truths. As the Judge recognized today, the question whether President Trump raped me twenty years ago in a department store is at ‘the heart’ of this lawsuit. We can finally return to answering that question, and getting the truth out.”
Federal Judge Rejects DOJ M… by Adam Klasfeld
[Image via MANDEL NGAN/AFP via Getty Images]
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