stories filed under: "westfall act"

Not As Surprising As You May Think: Garland DOJ Says That Trump Denying Raping E. Jean Carroll Was Official Presidential Business

from the the-doj-is-gonna-doj dept

Thu, Jun 10th 2021 9:35am — Mike Masnick

Late last year, we covered the story of the DOJ stepping in to take over a defamation case for President Trump. As we noted at the time, the defamation case itself was pretty weak, though it's similar to a series of other defamation cases we've seen in recent times. E. Jean Carroll claimed that Donald Trump had sexually assaulted her many years ago. Trump later denied the claim, saying that it was "totally false" and saying (incorrectly, as it turns out) that he "never met this person in my life." Carroll then sued for defamation based on the denials. As noted, this kind of defamation case has popped up a few times, including a high profile one against Bill Cosby by one of his accusers as well.

What was perhaps somewhat different about the Carroll case, was that it was against the sitting president, and under the Westfall Act, if the Attorney General "certifies" that an action taken by federal employees that leads to a lawsuit against them was "within the scope of his office or employment," then the DOJ gets to insert itself into the case instead of the initial defendant (and, in a defamation case, then the case would be automatically dismissed, as you can't defame "the United States.")

So, the big question in this situation is whether or not Donald Trump denying sexually assaulting (or even meeting Carroll) was done as part of his official duties as president. I think it's a huge stretch to argue that it does -- and last fall, a judge agreed with me, denying the DOJ's attempt. The judge, Lewis Kaplan, noted that if Trump were talking about policy issues, it would be different, but denying a sexual assault from long before he was president doesn't appear to be official government business. I recognize that some people have argued otherwise, noting that since the accusations came up while he was president, and could potentially impact his job as president, commenting on the claims magically becomes the duty of the president, but that seems incredibly weak, and would effectively make the president immune from defamation claims in most instances.

Judge Kaplan went even further, though, in saying that he didn't think the president is even covered by the Westfall Act. This was surprising, but the argument was pretty compelling, with the key points being:

The president is a constitutional officer. He occupies the highest office in our nation, which is created by Article II of the Constitution. But that is not what Section 2671 requires. It speaks only of “officers . . . of any federal agency,” not officers of the United States within the meaning of the Constitution....

[....[

Because the president is at the apex of the executive branch, many think of him, in a colloquial sense, as the “head” of many federal departments, agencies, and organizations. At the very least, one might imagine that he leads some agency at the core of the executive branch. The government has not attempted to identify any such agency in its papers, but the two most obvious candidates are the Executive Office of the President (“EOP”) and the president’s cabinet. But neither entity fits the bill. The head of the EOP, which is a network of agencies, is the president’s chief of staff. And even if one were to call the cabinet an “executive department” or “independent establishment” – a dubious contention – the president himself is not a member of the cabinet, although the vice president is.

After Biden won the election, many assumed that the new DOJ, under Merrick Garland, would let the matter drop. After all, would a Biden administration really want to be in court trying to kill a defamation case against Donald Trump?

But, of course, that ignores how the DOJ functions, and the importance the DOJ puts on making sure it retains this power in other, future cases. So, while it surprised many, it shouldn't be at all surprising that the DOJ is appealing the decision.

The thing that seems most important to the DOJ is whether or not the Westfall Act applies to the president. For fairly obvious reasons, any presidential administration probably wants that to remain in place:

The district court held that the President is not an “employee of the government” for purposes of the FTCA and, hence, for the Westfall Act, 28 U.S.C. § 2679(b)(1). If that were correct, no action taken by the President could give rise to tort liability on the part of the United States. And the United States could never be substituted as the defendant in a tort action against a President in his or her personal capacity, even when the conduct at issue was incontrovertibly taken within the scope of employment.

Basically, the DOJ says that even if the Court technically read the law properly, no one else has ever read the law that way.

To our knowledge, the United States has never disclaimed liability for torts committed by an executive branch employee on the ground that the employee was not employed by one of the fifteen cabinet level departments identified in 28 U.S.C. § 451. To the contrary, all three branches of government have long construed the statute broadly.

And then it argues that the district court also should have allowed the DOJ to take over the case on the grounds that Trump denying the assault was, in fact, official business. The DOJ brief notes that it was discussing "reprehensible conduct," but that it could still be done within the scope of the President's duties.

Applying these established principles to this case, the statements by then- President Trump fell within the scope of his employment. The district court’s contrary conclusion was premised on an assumption that the statements were not within the scope because “President Trump’s views on [Ms. Carroll’s] sexual assault allegation” were not pertinent to his employment since “they reveal nothing about the operation of government” (SPA53) and “[n]either the media reports nor the underlying allegations have any relationship to his official duties” (SPA58). That premise was mistaken.

When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President. Likewise, when Mr. Trump responded to those questions with denials of wrongdoing made through the White House press office or in statements to reporters in the Oval Office and on the White House lawn, he acted within the scope of his office. Elected public officials can—and often must—address allegations regarding personal wrongdoing that inspire doubt about their suitability for office. Such wrongdoing can include not only the serious charges of criminal behavior leveled here, but a range of activities including fraud and malfeasance. Officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives. Thus, in Ballenger, the D.C. Circuit concluded that a congressman acted within the scope of employment when he allegedly engaged in defamation during an interview to explain the reasons for his separation from his wife. 444 F.3d at 662. The district court’s contrary reasoning in this case fails to appreciate the responsibility that elected officials owe the public to respond to serious allegations that cast doubt on their fitness for office.

Once again, this is the DOJ and the administration doing what the DOJ and any administration is likely to do: protecting their own powers. It shouldn't be surprising, even if it feels weird that the Biden DOJ would continue down this path. It's likely going to be true in a number of other cases started by the Trump DOJ that the Biden DOJ might not have initiated, but doesn't want to hinder future powers.

Filed Under: defamation, doj, donald trump, e. jean carroll, joe biden, merrick garland, westfall act, william barr

Judge: Trump Denying He Raped Someone Was Not Part Of His Official President's Duties

Defamation

from the so-there's-that dept

Thu, Oct 29th 2020 1:42pm — Mike Masnick

Last month we wrote about an absolutely ridiculous situation in which the DOJ sought to insert itself into the long-running defamation case brought by E. Jean Carroll against Donald Trump. As we noted, Carroll's defamation claims seem fairly weak. They're part of a pattern of somewhat sketchy defamation claims in which someone accuses someone of something awful, and then the accused person denies it -- and the accuser says the denial is defamation.

In this case, Carroll claims that Trump sexually assaulted her years ago. Trump denied even knowing her. She sued for defamation. Again, the case seems pretty weak and I think Trump has a decent chance of winning. However, despite trying, Trump and his personal lawyers failed to stop the discovery process, in which she's seeking a sample of his DNA as part of proving her case. At that point, the DOJ stepped in, citing the Westfall Act, which requires the DOJ to step in and take over cases if the Attorney General "certifies" that the actions being sued over were done by a federal employee while "acting within the scope of his office or employment." And the key bit here: because of sovereign immunity, you cannot sue the federal government for defamation. So if the court allowed the DOJ to step in, in place of the President, the case would then need to be dismissed immediately.

And, thus, the argument the DOJ made was that Trump denied sexually assaulting Carroll... as part of his job as President of the US. As we pointed out in our original post, there were all sorts of reasons why this was ridiculous. Ken White did point out that there are some rulings on the books saying that politicians answering questions from the press about their personal lives is part of their job description, and thus it was possible that a judge might actually side with the DOJ.

However, the judge did not do that at all. In a 61 page, very detailed ruling, Judge Lewis Kaplan (last seen here berating copyright troll Richard Liebowitz) rejected basically every last bit of the DOJ's argument. He did so on two key grounds. There was the reason that lots of us expected: that denying you sexually assaulted someone is not part of the job of being President:

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. And the public’s reasons for being interested in these comments are different as well. The president’s views on the former topics are interesting because they alert the public about what the government is up to. President Trump’s views on the plaintiff’s sexual assault allegation may be interesting to some, but they reveal nothing about the operation of government.

Separately, Judge Kaplan notes that the DOJ messed up its filing and left the strongest argument it had out of the initial filing and only put it in the reply brief. That's a no-no. You have to include all your arguments upfront.

The government’s best argument on this point is that President Trump’s statements about Ms. Carroll were within the scope of his employment in that refuting her accusation furthered his ability to govern effectively because the accusation was reported widely and charged him with the commission of a serious crime. But there are at least three answers to that objection.

As an initial matter, the government first made the argument in its reply brief, thereby foreclosing the plaintiff from responding to it. As previously discussed, it thereby waived the argument as its counsel agreed in open court, as previously discussed.

Second, the Court would reject the argument even if it were not waived. While the government’s position is not entirely without merit, it goes much too far. Accepting it would mean that a president is free 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. Indeed, the same would be true for many government officials, who plausibly could argue that criticism of their behavior or character, even if completely unrelated to their government employment, would undermine their ability to perform effectively while in office.

Perhaps more surprising, though, is that Judge Kaplan argued that the Westfall Act doesn't even apply to the President because the President does not qualify as a federal employee under the Act. I wasn't expecting that, and it sounds a bit counterintuitive, but the court makes a surprisingly compelling argument:

The president is a constitutional officer. He occupies the highest office in our nation, which is created by Article II of the Constitution. But that is not what Section 2671 requires. It speaks only of “officers . . . of any federal agency,” not officers of the United States within the meaning of the Constitution. So we turn to the question whether the president is an officer “of any federal agency” within the meaning of Section 2671. As noted above, Section 2671 states that the term “federal agency” “includes the executive departments, the judicial and legislative branches, the military departments, independent establishments of the United States, and corporations primarily acting as instrumentalities or agencies of the United States.”

At the outset, it is apparent that this definition does not include the entire executive branch. Although Congress referred to “the executive departments,” the fact that the phrase is plural makes clear that Congress did not mean “the executive branch.” Congress knew how to refer to an entire branch of government, as evidenced by the fact that the very next words of the statute are “the judicial and legislative branches.” The plain meaning of this language is that members of Congress, federal judges, and the staffs of both all are included in the term “federal agency.” But the entire executive branch is not. Only those parts of the executive branch that fall within the other terms of the definition are included.

The argument goes on for a few pages and then notes:

Because the president is at the apex of the executive branch, many think of him, in a colloquial sense, as the “head” of many federal departments, agencies, and organizations. At the very least, one might imagine that he leads some agency at the core of the executive branch. The government has not attempted to identify any such agency in its papers, but the two most obvious candidates are the Executive Office of the President (“EOP”) and the president’s cabinet. But neither entity fits the bill. The head of the EOP, which is a network of agencies, is the president’s chief of staff. And even if one were to call the cabinet an “executive department” or “independent establishment” – a dubious contention – the president himself is not a member of the cabinet, although the vice president is.

Indeed, the basic civics lessons on the White House’s website draw a clear distinction between “the executive branch,” “the executive departments,” and “federal agencies.” Its page on “The Executive Branch” states that the Constitution vests in the president “[t]he power of the Executive Branch” and that “[f]ifteen executive departments – each led by an appointed member of the President’s Cabinet – carry out the day-to-day administration of the federal government.” It states also that the “executive departments” “are joined in this [effort] by other executive agencies such as the [Central Intelligence Agency] and Environmental Protection Agency, the heads of which are not part of the Cabinet, but who are under full authority of the President.”

There's a lot more on this, but the key point that is made is that the Westfall Act was responding to a specific Supreme Court case about federal employees. But there was another case that predated that, regarding Richard Nixon, noting that the President already has immunity from lawsuits regarding official acts. In other words, Congress had no reason to make the Westfall Act cover the President because the President was already immune from lawsuits over official acts.

In 1982, the Supreme Court decided in Nixon v. Fitzgerald67 that the president “is entitled to absolute immunity from damages liability predicated on his official acts.” So when the Supreme Court decided Westfall just six years later and held that “federal officials are not absolutely immune from state-law tort liability for all actions committed within the outer perimeter of their duties,” it clearly was not referring to the president. When Westfall referred generally to “federal officials,” it merely expanded the potential amenability to suit and liability of that more limited group of individuals.

Congress was well aware of this background when it passed the Westfall Act. As the Supreme Court later wrote, “[w]hen Congress wrote the Westfall Act, which covers federal employees generally . . . , the legislators had one purpose firmly in mind.” That purpose was “to ‘return Federal employees to the status they held prior to the Westfall decision.’” There was no need to extend the protections of the Westfall Act to the president, whom the Supreme Court evidently recognized was not a “federal employee,” for the very good reason that the president already had “absolute immunity from damages liability predicated on his official acts” by virtue of Nixon v. Fitzgerald.

Unless one ignores Nixon, it is impossible to read Westfall as applying to the president. Given that the “one purpose” of the Westfall Act was to “return Federal employees to the status they held prior to the Westfall decision,” Congress presumptively was aware that neither Section 2671 nor the FTCA applied to the president. It therefore had no reason to extend the Westfall Act to that office.

And, since denying sexual assault is not part of his official job, none of this matters anyway. The President is not able to sidestep the lawsuit. Well, yet. We'll see what sort of appeals happen. Or what happens if Trump is no longer President in the near future...

Filed Under: defamation, doj, donald trump, e. jean carroll, immunity, lewis kaplan, sovereign immunity, westfall act

DOJ Tries To Step In To Trump Defamation Case To Get It Dismissed; Claims His Statements About Alleged Rape Were Part Of His Presidential Duties

Defamation

from the say-what-now? dept

Thu, Sep 10th 2020 9:18am — Mike Masnick

Earlier this week, you may have seen a bunch of headlines about Bill Barr's DOJ trying to step in to take over a defamation case against the President. There is so much crazy about this story that it seemed worthwhile to dig in.

There have been a rash of somewhat strange defamation lawsuits over the last few years, often connected to the "me too" movement, in which someone calls out a person for bad behavior, the accused person denies it, and then the accuser sues for defamation. To be honest, most of these feel like SLAPP suits, even if I'm sympathetic to the accuser. A mere denial of something should not be nearly enough to reach the stage of defamation. One of these lawsuits was filed by E. Jean Carroll against President Trump. Carroll claimed that Trump sexually assaulted her in a dressing room in a Manhattan department store many years ago. Upon being asked about the accusations, Trump denied it, saying they were "totally false" and claiming (falsely) that he "never met this person in my life." Based on those statements, Carroll sued in NY state court.

Again, I actually think the case is pretty weak as a defamation case. Many of the claimed statements are not remotely possible of reaching the level of defamation. Many of them take statements that Trump made and stretch the intended meaning of them quite far. Others take statements that are clearly Trump's (bonkers) opinion, rather than factual. It is, overall, a weak case and will almost certainly not be a winning case for Carroll. That said, the case has rolled on (remember: New York has a terrible anti-SLAPP law, one of the worst in the country -- and while the legislature has passed an improved law, I don't believe Cuomo has signed it yet). Most recently there was a discovery dispute. Carroll is seeking a sample of Trump's DNA as part of her discovery requests. Trump's personal lawyers sought to delay discovery, but failed to do so last month.

That puts the President in a bit of a pickle. Even though he'd likely win the lawsuit in the end, it appears he'd really rather not provide Carroll with a sample of his DNA. The insane solution? Bill Barr and the DOJ suddenly jump into the case on behalf of Trump and try to remove it to federal court, taking over for Trump's private lawyers. Now you may be saying "wait, what?" and I agree with you. But, a little background here is necessary. First, there's the Westfall Act, which requires that if the Attorney General "certifies" that the actions a federal employee is being sued over were "acting within the scope of his office or employment," then the DOJ steps in to represent that federal employee. This is done to avoid having federal employees randomly sued and having their life upended for doing their job.

But... this is not the usual case in which you'd see this. For this to apply, Bill Barr has to claim that Donald Trump saying he didn't know E. Jean Carroll, didn't rape her, and a few other things were within the scope of his role as President of the United States... and what the actual fuck? How is that even remotely a thing? The filing by the DOJ doesn't go into much depth on this, it just says that because the DOJ says so, it must be so:

Acting pursuant to 28 C.F.R. § 15.4(a), the Attorney General’s delegate has certified that President Trump was acting within the scope of his office as President of the United States when he publicly denied as false the allegations made by Plaintiff.

In a footnote, the DOJ tries to give Barr deniability by saying he delegated his authority here to Torts Branch Director James Touhey, but come on. Everyone knows that this is Barr doing the President's personal business. The full certification is just Touhey saying "yup, he denied the rape as part of his job" in slightly more official words:

I, James G. Touhey, Jr., am the Director of the Torts Branch, Civil Division, United States Department of Justice, responsible for most civil litigation under the Federal Tort Claims Act. I have read the complaint dated November 4, 2019, in the above-captioned case. Pursuant to 28 U.S.C. § 2670, and by virtue of the authority vested in me pursuant to 28 C.F.R. § 15.4, I hereby certify, on the bases of the information now available with respect to the incidents alleged in the complaint, that Defendant Donald J. Trump was acting within the scope of his office as the President of the United States at the time of the alleged conduct.

Honestly, this bullshit should haunt James G. Touhey Jr. for the rest of his life as a lawyer. It is pure bullshit.

And while some people are claiming that this is the DOJ trying to take over the "defense" of Trump in this case, that's not it at all. It's trying to get the case dismissed. Federal employees are effectively immune from defamation claims under the very same Westfall Act, because of sovereign immunity. In the case of Suzanne Brown v. Katherine Schoeneman, someone tried to sue an FBI employee for defamation, but the DOJ stepped in under the Westfall Act (making the new case Brown v. U.S.) and got the case dismissed thanks to sovereign immunity for defamation claims.

Of course, that ruling does say that the DOJ's certification can be challenged, and you can bet that Carroll's lawyers are going to challenge every last word of Touhey's certification -- so I assume that's the next step here. For what it's worth, the case has been assigned to Judge Lewis Kaplan. I honestly don't know much about Judge Kaplan other than the fact that last month we wrote about him issuing quite a benchslap to infamous copyright troll Richard Liebowitz, so based on that small sample size, he appears to be a judge not willing to put up with much shit. That said, the DOJ is not the same as Richard Liebowitz.

Also, as pointed out by Ken White, there are some cases that suggest the DOJ could win this argument. In CAIR v. Ballenger, the DC Circuit said that since answering questions from the press is part of the job, then answers about a scandal outside of your official duties could be considered within the scope of the office. So, because the press was talking to him in his role as President and he answered as such, his answers about a claim of rape from decades ago are now a part of his job as President. This argument makes about as much sense as saying that his comments were defamatory in the first place, so it's a toss up here over which of these arguments is dumber.

Of course, some of you may be asking why did the DOJ just step in now if the case was filed back in November of last year. The answer is almost certainly that Trump REALLY REALLY does not want to give a DNA sample to Carroll. There may be legit reasons why he would not want to do that, and I still think her defamation case is weak, but it's is truly fucked up that he then gets to pervert the Justice Department with the help of Bill Barr, to try to squeeze out of the case.

Filed Under: defamation, discovery, dna, doj, donald trump, e. jean carroll, westfall act, william barr

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Not As Surprising As You May Think: Garland DOJ Says That Trump Denying Raping E. Jean Carroll Was Official Presidential Business

from the the-doj-is-gonna-doj dept

Judge: Trump Denying He Raped Someone Was Not Part Of His Official President's Duties

from the so-there's-that dept

DOJ Tries To Step In To Trump Defamation Case To Get It Dismissed; Claims His Statements About Alleged Rape Were Part Of His Presidential Duties

from the say-what-now? dept

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