Judge rules against Donald Trump in rape case

NEW YORK – A Judge today has ruled against Donald Trump in a case in which a woman claims Trump raped her and then defamed her and the Department of Justice sought to replace Trump as the defendant in the lawsuit.

U.S. District Judge Lewis A. Kaplan of the Southern District of New York ruled today that the Justice Department cannot be allowed to replace Donald Trump as defendant in the defamation lawsuit brought by E Jean Carroll, who claims Donald Trump raped her. The facts of the case as stated in the opinion:

The plaintiff in this case, E. Jean Carroll, published a book excerpt in 2019 in which she wrote that, in the 1990s, businessman Donald J. Trump, as he then was, raped her in a dressing room of a New York City department store. Almost immediately after publication of Ms. Carroll’s excerpt, Mr. Trump – who by then was president – told the press that Ms. Carroll had made up the rape story. In substance, he called Ms. Carroll a liar and stated that he never met her. So Ms. Carroll sued him in New York State court. She claims that his statements accusing her of lying about the alleged rape were false, that they injured her reputation, and that she is entitled to damages from him. The legal terms are that Ms. Carroll asserts that President Trump’s statements were defamatory – libelous and slanderous.

The question whether Mr. Trump in fact raped Ms. Carroll appears to be at the heart of her lawsuit. That is so because the truth or falsity of a defendant’s alleged defamatory statements can be dispositive of any defamation case. Although the Court eventually may need to resolve this issue, this opinion concerns a threshold question. To make the significance of that question clear, we must digress into some technical detail.

Ms. Carroll sued the president in his individual (or personal) capacity, as distinguished from suing him as the president (i.e., in his official capacity). In other words, she claims that the president personally harmed her and that he, not the U.S. government, should pay any damages to which she may be entitled.

For nearly a year, this lawsuit proceeded in state court as an ordinary defamation case between Ms. Carroll and President Trump. The president defended the case as a private individual. He was represented by his personal lawyers, not by the U.S. Department of Justice (“DOJ”) or other government lawyers. And although he claimed that he could not be sued because he currently is president, the state court rejected that argument and denied a stay of further proceedings, which would have included pretrial discovery.

It was at that point that the U.S. government inserted itself into the case. It “removed” the case from the state court to this one – that is, it filed a paper certifying that a designee of the Attorney General had determined that the president’s statements to the press were part of his job as president and that this case therefore could be moved into federal court. For reasons that will appear, that certificate – whether it is right or wrong – conclusively authorized the removal of the case, and no one claims otherwise. But the DOJ did something else too, and that is what now is before the Court.

The government moves to substitute the United States for President Trump as the defendant. It does so in essence on the theory that this is not truly a lawsuit against President Trump as a private individual. Instead, the government argues, this is really a lawsuit against the United States because Ms. Carroll has sued an “employee” of the United States of America for actions within the scope of his employment. The government thus asserts that this case is virtually identical in principle to a lawsuit against a Postal Service driver for causing a car accident while delivering the mail. But the word “virtually” in the last sentence is necessary because there is an important difference between this case and the case of the hypothetical mail driver. Here is the catch.

The United States of America is a sovereign nation. It therefore shares with other nations what is called sovereign immunity. This means that it cannot be sued for money damages except to the extent that it explicitly has agreed to being sued.

Within certain limits, the United States has so agreed in a statute called the Federal Tort Claims Act (the “FTCA”). The FTCA authorizes damages claims for negligence and certain other civil wrongs committed by government employees within the scope of their employment. The postal driver hypothetical is a classic example of a case that generally would be covered by the statute. But the FTCA specifically excepts libel and slander cases from the United States’s consent to be sued. Thus, if this really is a suit against the United States, it is one to which the United States seemingly has not waived its sovereign immunity. So if President Trump is an “employee of the Government” within the meaning of the FTCA, and if his statements about Ms. Carroll were within “the scope of his employment,” it could well be argued that this case must be dismissed because the United States has sovereign immunity.3 In that event, Ms. Carroll would be left with no remedy, even if the president’s statements were false and defamatory.

This is the nutshell version of this case. But for the present purpose of deciding the government’s motion to substitute, the dispositive questions are two:

• Is the president an “employee of the Government” within the meaning of the FTCA?

• Even if the president is an “employee of the Government” as the FTCA defines that term, were his statements concerning Ms. Carroll within the scope of his “employment” under the law of the relevant jurisdiction?

The answer to both questions is “no.” While the president possesses all of the executive power of the United States, he is not an “employee” within the meaning of the FTCA. The FTCA’s definition of that term does not include presidents. And even if the president were an employee under that statute, his statements concerning Ms. Carroll were not within the scope of his employment under the law of the relevant jurisdiction, which for reasons explained below is Washington, D.C.

Overjoyed! The DOJ and @realDonaldTrump TOGETHER, can't stop a woman who wants the world to know the truth!

And the two greatest attorneys in America—@kaplanrobbie and @JoshuaMatz8 —made it happen!!

This win is for every woman in the country!https://t.co/Vj7Q769l3j

— E. Jean Carroll (@ejeancarroll) October 27, 2020

https://t.co/W8Qa5AB68Y

— E. Jean Carroll (@ejeancarroll) October 22, 2020