Trump, DOJ attorneys argue statements on rape allegation were part of job as president

Former President Trump’s attorneys on Tuesday argued to the top court in Washington, D.C., that he acted within the scope of his employment as president when he made comments that a woman who accused him of raping her in the 1990s has said were defamatory.

E. Jean Carroll, a longtime columnist for Elle magazine, went public with the allegation of sexual assault during the Trump administration, and she then sued the former president for defamation over statements he subsequently made casting doubt on Carroll’s credibility and demeaning her appearance. Trump vehemently denies the assault took place.

The federal appeals court overseeing the case in September ruled it was unclear whether Trump’s statements fell under the Westfall Act, which protects government employees from tort lawsuits arising from actions within the scope of their employment, and asked the D.C. Court of Appeals to weigh in based on the city’s local employment laws.

Carroll’s lawsuit would be unlikely to succeed if Trump’s statements are deemed to fall under the protection of the law, although Carroll has since filed a separate lawsuit with additional allegations of defamation and a claim for the alleged sexual assault itself under a newly enacted New York law.

Trump attorney Alina Habba argued on Tuesday that the former president was serving the public in making the statements by responding to journalists who “thrust upon him” the alleged sexual assault as a matter of public concern.

The Department of Justice, under both the Trump and Biden administrations, has sided with Trump’s attorneys in arguing the Westfall Act applies to the statements.

“He was on the front lawn being asked questions. He answered those questions. That is proof that he was solely doing it to respond and for the purpose of his job,” Habba said.

She argued Trump cannot be held liable even if the comments were one iota in the scope of his employment, but Joshua Matz, an attorney representing Carroll, argued the court should use a higher standard.

Matz asserted that Trump was liable under either rule, however, because the comments were purely personal, pointing to their inflammatory nature and that Trump’s conduct continued beyond his presidency.

The alleged defamatory statements include a written statement the White House issued to reporters, comments Trump made to reporters on the South Lawn and an interview Trump gave to The Hill, in which he said Carroll was “not my type.”

“If you look at his statements, there are several features of them that take this, I think, well outside the norm, even for Mr. Trump during his time in office,” Matz said.

The federal appeals court asked the D.C judges to weigh in about “under the laws of the District, 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?”

A number of judges, however, drew concerns over whether the local court should completely answer the federal court’s question by applying D.C. employment law to the facts of the case, or whether its appropriate role is to merely clarify D.C. employment law so that a fact-finder could apply it to Trump’s case.

Matz said the court should not dodge the question, arguing in part it could lead to further delays.

“This case has gone on for quite some time, the parties are of an advanced age and looking for a resolution to the case,” Matz said. “And Judge Kaplan has concluded multiple times that Mr. Trump has acted with bad faith and in dilatory ways designed to prolong the resolution of these proceedings. And if the court were to pursue your option, Judge McLeese, I frankly worry it could take years to get to a resolution.”