Court grapples on appeal over DOJ effort to protect Trump from E. Jean Carroll suit

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A federal appeals court on Friday wrestled with the Justice Department’s effort to intervene on behalf of former President TrumpDonald TrumpBaldwin Trump called the criticism following the ‘surreal’ ‘Rust’ shooting that hit Haley’s stump in South Carolina. Mary Trump has filed to dismiss Trump’s lawsuit over the NYT tax story MORE than a defamation lawsuit from writer E. Jean Carroll, who says he raped her in the ’90s.

The three-judge panel for the New York-based 2nd U.S. Circuit Court of Appeals questioned arguments from the Biden administration and Trump’s personal attorney that the former president’s comments about Carroll’s denial of his allegations were made in scope of his official employment as a government official.

If the circuit court decides that Trump cannot be sued in his personal capacity, it will ruin Carroll’s case, which says the former president committed “defamation designed to crush him” when he revealed his allegations in 2019.

Judge Denny Chin questioned whether Trump’s attacks on Carroll could be construed as statements he made within the scope of his official duties.

“Who does he serve when he says‘ I don’t type him, ’” asked Chin, an Obama nominee. “Was he serving the United States of America when he made that statement?”

Alina Habba, one of Trump’s personal lawyers, responded that he was, with the president addressing a question from the newspaper regarding his ability to hold office.

“Really,” Habba said. “Because he had to address the fact that it couldn’t have happened and wouldn’t have happened – he didn’t do it.”

Carroll filed his lawsuit against Trump in his personal capacity in 2019, arguing that the then president defamed him in response to his allegations, including in an interview with The Hill in which Trump accused him of lying and said, “I’ll say. it with great respect: No. 1, I didn’t type him. No. 2, it didn’t happen. Never happened, okay?”

In 2020, the Trump administration’s Department of Justice (DOJ) acted to intervene in the case, citing federal law that protects public officials from such lawsuits when they are involved in conduct occurring within the scope. of their work. The move has been widely criticized by Democrats and some legal experts as an abuse of departmental resources to protect the president’s personal interests.

A district court judge rejected the DOJ’s arguments, forcing the Trump administration to appeal. And earlier this year, Attorney General Merrick GarlandMerrick GarlandThe Memo: Trump’s justices look set to restrict abortion House progressives urged Garland to intervene in ex-environmental lawyer Steven Donziger’s case Garland ordered the DOJ to prioritize violence on planes MORE angry Democrats in Congress as the DOJ continued its efforts to intervene on Trump’s behalf before the 2nd Circuit.

DOJ attorney Mark Freeman argued Friday that significant institutional interests for the government are at stake in the case.

“The former president made rude and offensive comments in response to the very serious accusations of sexual assault made by Ms. Carroll,” Freeman said. “I’m not here to defend or justify those comments. I’m here because any president facing a public accusation of this kind … would feel obliged to answer questions from the public, answer questions from the media.”

Chin asked, “Can a president or a congressman on the steps of the Capitol or the White House say whatever they want and protect as long as there’s a reporter there listening? Is that the government’s position?”

Freeman demurred, saying the DOJ is not asking the court to develop a category rule for what is protected speech from a sitting president.

Joshua Matz, an attorney representing Carroll, argued that if the court accepts the position filed by the DOJ and Trump’s attorneys, it will send a message that senior government officials will escape responsibility for their actions. .

“Rejecting a remedy in the name of the nation’s immunity sovereignty is contrary to the adage that no one is above the law,” Matz said. “And we will simply submit that work in the White House is not a pledge of unlimited prerogative to brutalize victims of prior wrongdoing through personally motivated attacks. That is not law, no court has said this the law and we will ask this court not to make it law. “

At least one panel member, Judge Guido Calabresi, seems inclined to move the case to federal district court in DC to confuse the question of whether Trump’s comments are protected under local law.

Judges also appeared skeptical of Habba’s arguments that Trump was forced to respond publicly because Carroll had been offensive to his accusations.

“He went to the press. He was a public figure,” Habba said. “She went and put out an excerpt to the New York Magazine. Then she published a book. She made it public. She was on the aggressor side.”

When the judges asked if there were any limitations on legal immunity that he believed covered the president’s speech, Habba replied. “My limit to you, Your Honor, in plain English would be an unprovoked attack on a citizen. That’s not what happened here.”

Referring to local law that covers the scope of employment issues, Calabresi asked, “What DC case did you mention to me for saying provocation was even relevant?”

Habba responded that he could not cite a particular case but the court should note the context in which Trump made his comments.

“Whether it goes to the fitness of the president sitting, running the country, and I think in this case, it happened,” he said. “He had to address it. When the press … asked him a question about a story that was going to get his fitness to sit down – whether it was true or not true – he had to respond.”

It is unclear when the panel may issue a decision.

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