Donald Trump has repeatedly called for "opening up" libel laws and eliminating constitutional limits the Supreme Court has imposed on defamation suits brought by public figures, “so when they write purposely negative and horrible and false articles, we can sue them and win lots of money.”
But Trump’s attorney general, William Barr, just declared that nobody can sue the president for knowingly lying about them—even someone who says that Trump raped her before he was in office.
And Trump and Barr just might have the law on their side here; at the very least, the fixer’s move has bought our creep in chief valuable time, ensuring he won’t face any reckoning with his accuser before November. Here’s the story:
In 2019, journalist E. Jean Carroll published a book recounting in detail Trump’s alleged violent rape of her in a Bergdorf Goodman dressing room. Trump responded to Carroll’s allegations not only by repeatedly denying her allegations of sexual assault, but indeed by going so far as to assert that he did not know her at all, despite the existence of a photograph of the two of them together. Additionally, Trump insulted Carroll, and suggested, without basis, that she had made false accusations against others, stating: “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.” Trump also called Carroll’s book a “disgrace” and said he could not have raped her because she was not “his type.”
Following Trump’s denials and attacks on her character, Carroll filed a defamation action against Trump in New York state court. On August 3, Trump, represented by his private counsel, lost a motion to dismiss or stay the case. The court cited a recent Supreme Court decision rejecting Trump’s effort to categorically prohibit the Manhattan District Attorney from subpoenaing Trump’s financial records from his accounting firm in connection with a criminal investigation.
Central to the court’s reasoning was that “‘the presidency and the President are indeed separable’ and thus, ‘the President is presumptively subject to civil liability for conduct that has taken place in his private capacity,’" such as allegedly lying about his own alleged sexual misconduct. With the New York court’s decision, the stage was set for Trump to be ordered to comply with a demand to provide a sample of his DNA; a similar mandate proved critical in the criminal investigation of President Bill Clinton.
But as has occurred so many times, Donald Trump was rescued by his fixer at the Department of Justice, William Barr. On Tuesday, Department of Justice lawyers filed a notice of removal, transferring Carroll’s case to a New York City federal court, and a motion seeking the substitution of Trump as a defendant with the United States. The DOJ’s action was premised on the DOJ’s “certification” that Trump allegedly defamed Carroll in his “official capacity” as an employee of the federal government.
Under the Federal Tort Claims Act, federal government employees enjoy absolute immunity for common law torts, including defamation, committed within the scope of their official duties. If, after a lawsuit against a federal employee is filed in a state court, the attorney general, or an official acting on his behalf, issues a certification that the action arose from the employee’s performance of their official duties, he can direct the case to be removed to a federal court and to have the United States take the employee’s place as a defendant. The plaintiff must successfully challenge the attorney general’s certification, and if the certification stands in a defamation case like Carroll’s, that means the case will ultimately be dismissed, because the United States cannot be sued for defamation.
The DOJ’s “certification” that Trump slimed Carroll in his “official capacity” might actually be found to be meritorious, given the broad scope of the governing law.
Under that law, any activity falling in part within the scope of employment is protected by immunity and, where public officials are concerned, courts, relying on applicable state law doctrines, have broadly defined that scope as regards statements to the press.
For example, in 2006, the D.C. Circuit Court of Appeals addressed a defamation case brought against former North Carolina Representative Cass Ballenger, who responded to a reporter’s questions about his recent separation from his spouse by claiming that she feared living near the headquarters of the Council on American-Islamic Relations. Ballenger was afforded immunity by the the court, which reasoned that, “Speaking to the press during regular work hours in response to a reporter's inquiry falls within the scope of a congressman's ‘authorized duties.’" Furthermore, the court stated, remarks made by a legislator made to assure the public of his ability to carry out his duties, and his fitness for office, are properly subject to immunity, even if they concern the legislator’s personal life.
That said, Barr’s DOJ fails to cite any court decision providing that an officeholder’s gratuitous insults toward an alleged rape victim fall within the scope of his employment. Furthermore, in issuing its decision in favor of Ballenger, the D.C. Circuit made an important qualification, stating that it did not intend “to immunize many federal employees for any gratuitous slander in the context of statements of a purely personal nature." Yet Barr is indeed demanding that the federal courts grant Trump immunity for repeated, and gratuitous, alleged defamations, of his own alleged rape victim no less. Accordingly, if the attorney general has his way, the president’s freedom to defame will be effectively unbounded.
Pressing the law to its limits, and beyond, to serve the president is, of course, nothing new for the nation’s chief law enforcement officer, who most recently motioned to dismiss charges against Michael Flynn, Trump’s former National Security officer, for lying to the FBI about his discussions with the Russian ambassador following the 2016 election about Trump’s plans to go easy on Russia once he took office. The DOJ’s motion was premised on the absurd contention that Flynn, who twice pleaded guilty, is not guilty. The DOJ’s effort to prevent the trial court from holding a hearing on the department’s motion to dismiss before ruling upon it was recently rejected by an appellate court.
Even if the federal courts ultimately reject the DOJ’s “certification” that Trump allegedly defamed his own rape victim in his official capacity as the nation’s chief executive, and deny Trump immunity, Trump will nonetheless obtain the primary benefit the attorney general is seeking for his client in the White House: Delay and escape from a state court judge who ruled against Trump.
Under the governing federal law, the DOJ certification that a defendant employee acted within the scope of his official duties is all it takes to remove a case from a state to a federal court, and to keep it there, regardless of whether the federal courts ultimately agree with the Barr DOJ’s certification.
Accordingly, even if the courts ultimately determine that Trump’s alleged defamations were not sufficiently related to his official duties, and thus that he is not immune from suit, the case will nonetheless remain in federal court. Furthermore, during the crucial weeks leading up to the election, there is virtually no chance that Trump will be called upon to give testimony (or his DNA), which he presumably very much wants to avoid.
In sum, Trump is, once again, the beneficiary of the boundary-free assistance of his favorite law enforcement officer. The attorney general’s bad faith misuse of the justice system, in transparent service of the president’s personal and political interests, continues to work a heavy cost upon the nation, and its citizens’ faith in, and expectation of, equal justice under the law.
Indeed, if Trump has his way and the Supreme Court “opens up” defamation laws, Trump could well prevail in some of his own threatened defamation actions, and “win lots of money,” while victims of Trump’s own defamations would be left without recourse so long as he remains in office.