E. Jean Carroll’s case may fail thanks to broad protections granted to federal officials and employees. She still plans to file a separate suit accusing the ex-president of rape.

By Rebecca Davis O’Brien and Benjamin Weiser

Sept. 27, 2022

A District of Columbia court will have to determine whether Donald J. Trump was acting in his official

capacity as president when he scoffed at the accusations of a woman who said he raped her decades ago, a

federal appeals court in New York ruled on Tuesday.

The future of the case, involving the writer E. Jean Carroll, depends on the decision. If the court in

Washington rules that Mr. Trump was acting in his role as a federal employee — and the United States

becomes the defendant, instead of Mr. Trump — Ms. Carroll’s suit cannot proceed, because the federal

government cannot be sued for defamation.

The 2-to-1 ruling by a panel of the U.S. Court of Appeals for the Second Circuit in New York stems from a

lawsuit in which Ms. Carroll said Mr. Trump damaged her reputation when he denied attacking her in a

department store dressing room in the 1990s and branded her a liar.

The court had to answer two questions: first, whether the president is an employee of the federal

government, and second, whether he was acting in that capacity when he made his comments about Ms.

Carroll. The court held that the president does count as a federal employee but left the other question to the

Washington court.

The ruling was in part a rejection of Ms. Carroll’s legal argument, and Mr. Trump’s lawyer, Alina Habba,

claimed it as a victory.

“This decision will protect the ability of all future presidents to effectively govern without hindrance,” Ms.

Habba said in a statement. “We are confident that the D.C. Court of Appeals will find that our client was

acting within the scope of his employment when properly repudiating Ms. Carroll’s allegations.”

Ms. Carroll’s lawyer, Roberta A. Kaplan, said she was confident the court in Washington would agree with the

core of her client’s position: that Mr. Trump was not acting in his official capacity when he made the

comments.

A Justice Department spokesman declined to comment on the ruling.

Trump Might Escape Writer’s Defamation Suit Because He

Was President

Ms. Kaplan said her client still plans to file a separate suit in November, taking advantage of a new state law

giving adult sexual assault victims a one-time opportunity to file civil lawsuits, even if the statute of

limitations has long expired.

The federal appeals panel’s majority opinion was written by Judge Guido Calabresi, who was appointed by

former President Bill Clinton.

It does not express a view on whether Mr. Trump’s statements were defamatory, but does say that finding

that Mr. Trump was speaking as a federal employee would mean “the failure of Carroll’s defamation lawsuit.”

The ruling reverses the ruling of Judge Lewis A. Kaplan of U.S. District Court in Manhattan who had held

that the president is not considered a federal employee for the purposes of civil lawsuits, and that in any case

Mr. Trump had been acting outside his official role when he made the statements.

In November 2019, Ms. Carroll sued Mr. Trump for defamation in state court in Manhattan, claiming he had

lied in publicly denying he had raped her, an accusation she had made months earlier in a book excerpt in

New York magazine.

In the excerpt, Ms. Carroll had said Mr. Trump threw her against the wall of a dressing room at Bergdorf

Goodman in Manhattan in the mid-1990s. Mr. Trump then pulled down her tights, opened his pants and

forced himself on her, she claimed.

After Ms. Carroll’s allegation was published, Mr. Trump said she was “totally lying,” denied that the assault

had occurred and said he could not have raped her because she was not his “type.”

In August 2020, a state judge issued a ruling in the case that could have opened the door to Mr. Trump’s

having to sit for a sworn deposition before the presidential election. A month later, the Trump

administration’s Justice Department entered the case.

In a highly unusual move, the department transferred the case into federal court in Manhattan and

substituted the federal government for Mr. Trump as the defendant.

Ms. Carroll’s lawyers argued vigorously in court filings that Mr. Trump was not acting as a government

employee when he made the remarks.

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“There is not a single person in the United States — not the president and not anyone else — whose job

description includes slandering women they sexually assaulted,” Ms. Carroll’s attorneys said in a court filing.

That October, Judge Kaplan of Federal District Court rejected the Trump administration’s position and ruled

that Ms. Carroll’s lawsuit could continue against Mr. Trump in his private capacity.

Mr. Trump’s “comments concerned an alleged sexual assault that took place several decades before he took

office,” Judge Kaplan wrote, “and the allegations have no relationship to the official business of the United

States.”

Mr. Trump’s lawyers appealed the ruling to the Second Circuit.

In a June 2021 brief filed with the appeals court, the Justice Department under the new Biden administration

supported Mr. Trump’s position. Though Mr. Trump’s remarks about Ms. Carroll were “crude and

disrespectful,” the department wrote, the Trump administration’s argument that Mr. Trump was acting in his

official capacity was correct.

The panel that heard the case in December included Judge Calabresi, William J. Nardini — a Trump

appointee — and Denny Chin, who was appointed by former President Barack Obama.

In a strongly worded dissenting opinion, Judge Chin disagreed with the other judges’ finding that the

president is an employee of the government. Aside from the system of checks and balances, and

constitutional “precautions” such as impeachment, “no one controls the president,” Judge Chin wrote.

“If the government is correct that the United States must be substituted for Trump in this case under the

Westfall Act,” Judge Chin wrote, citing the 1988 statute that protects federal employees from lawsuits, “then

Carroll is left without any remedy, even if Trump indeed defamed her.”

E. Jean Carroll, center, wrote that Mr. Trump attacked her in a department store dressing room. Jefferson Siegel for The New York Times

Judge Chin added, “Trump was not acting in the scope of his employment when he made comments about

Carroll and her accusations because he was not serving any purpose of the federal government.”

He wrote, “Carroll’s allegations plausibly paint a picture of a man pursuing a personal vendetta against an

accuser.”

Judge Calabresi also filed a separate opinion, noting that the matter touched on a question that no court had

previously addressed and that “raises profound problems” about the limits of immunity afforded to federal

employees.

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