The D.C. Court of Appeals on Tuesday set an expedited schedule to determine the next step in author E. Jean Carroll’s defamation lawsuit against former president Donald Trump.
That next step is determining whether or not the 45th president was acting “within the scope of his employment” as U.S. president when he denied Carroll’s allegations of rape and made “allegedly libelous public statements” about her to reporters in 2019.
Carroll has accused Trump of raping her in the dressing room of New York City department store Bergdorf Goodman sometime in the late 1990s. In response to those allegations, Trump issued a series of denials, telling The Hill that his accuser was “totally lying” and that “she’s not my type.”
The controversy first arose in June 2019 and the case has been marked by a series of delays since Carroll first sued the then-president in New York State Supreme Court in November 2019.
Late last month, the Second Circuit Court of Appeals issued Trump a partial victory by finding that Trump was acting as an “employee” under the Westfall Act – which protects government employees from common law tort claims for actions that occurred within their official position while giving litigants a way to have the government itself step in as a defendant for purposes of recovering damages.
In issuing Trump the tentative win, the Second Circuit also certified a question for the D.C. Court of Appeals, the equivalent of the district’s supreme court, asking whether comments denying Carroll’s claims and ridiculing her appearance qualify as actions within the course of the president’s official duties.
That limited victory for Trump was also beneficial to Carroll – allowing discovery in the case to proceed while the certified question was answered. A federal district court in New York City earlier this month declined a request by Trump’s legal team to pause the lawsuit and immediately substitute the United States as the defendant. Trump was finally deposed in the matter last Wednesday, Oct. 21, 2022.
The specific question posed by the federal appellate court to the D.C. Court of Appeals is: “[u]nder the laws of the District [of Columbia], were the allegedly libelous public statements made, during his term in office, by the President of the United States, denying allegations of misconduct, with regards to events prior to that term of office. within the scope of his employment as President of the United States?”
The full D.C. Court of Appeals decided to answer the question under an expedited briefing schedule.
Trump’s first briefs are due Nov. 9, 2022, amicus briefs supporting his position are due Nov. 16, 2022, Carroll’s response briefs are due Dec. 1, 2022, additional amicus briefs supporting her position are due Dec. 8, 2022, and Trump’s reply to Carroll’s response is due Dec. 15, 2022.
Oral argument is currently slated for Jan. 10, 2023.
“Because the case is expedited, no extension requests will be entertained,” the full D.C. court noted.
The court’s order also clarifies that the certified question “essentially has two parts.” Those parts, the order says, are about “the scope of the President of the United States’ employment” as well as the “respondeat superior case precedents” in D.C.
The concept of respondeat superior is a basic legal doctrine taught to first-year law students which generally holds, under tort law, that an employer or principal is legally responsible for the wrongful acts of their employee or agent – so long as the employee or agent is acting within the scope of their employment.
Both sides welcomed the expedited schedule.
“We are pleased that this appeal will be heard on an expedited basis and we look forward to arguing these important issues before the DC Court of Appeals,” Trump’s attorney Alina Habba told Law&Crime.
“We are pleased that the D.C. Court of Appeals set an expedited schedule to determine the issue certified by the United States Court of Appeals for the Second Circuit,” Carroll’s attorney Roberta Kaplan told Law&Crime. “As we’ve said several times by now, we are eager to get to trial on all of E. Jean’s claims as soon as possible.”
Kaplan has previously signaled she intends to file a separate lawsuit on behalf of Carroll on Nov. 24, 2022, the date that New York’s Adult Survivors Act goes into effect. That lawsuit will focus on direct liability for the alleged sexual assault under New York State law. That forthcoming lawsuit will not be subject to any Westfall immunity issues.
Adam Klasfeld contributed to this report.
[images: Carroll via Astrid Stawiarz/Getty Images for Glamour; Trump via JIM WATSON/AFP/Getty Images]
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