A lawyer for Donald Trump on Tuesday was grilled about the former president’s recent inflammatory statements against a rape accuser during a court hearing in which Trump is trying to fend off a defamation lawsuit brought by the accuser for his earlier White House-era smears against her.
Trump attorney Alina Habba told the Washington, DC, Court of Appeals – which has been asked to weigh in on a legal dispute that has emerged from a 2019 defamation lawsuit brought by E. Jean Carroll – it would not be appropriate for her to address Trump’s recent anti-Carroll remarks. She pointed to a separate case Carroll, a former magazine columnist who says Trump assaulted her in the 1990s, brought last year under a freshly enacted New York law.
“It seems to me that is relevant” to the dispute before the DC court, said Court of Appeals Judge Loren AliKhan, pushing back.
The legal saga around Carroll’s 2019 defamation lawsuit has landed before DC’s highest local court after Trump secured a partial victory from the 2nd US Circuit Court of Appeals. The Second Circuit said Trump could potentially be shielded from Carroll’s lawsuit because he made the statements while he was president.
But the federal appeals panel asked the DC court to analyze whether, under DC employment law, his comments against Carroll were being made as part of his official duties as president.
The Justice Department is siding with Trump, having intervened toward the end of his administration with a maneuver that would effectively force the lawsuit’s dismissal. The lawsuit stems from Trump’s 2019 response to Carroll’s allegations, when – in a sensational press statement and in several rounds of comments to reporters – he said, among other things, she was not his “type,” while suggesting she was being paid off by Democrats.
Several judges on the DC Court of Appeals expressed reluctance on Tuesday to say whether Trump’s conduct fell within the scope of his employment. Multiple members of the court pointed to the lack of a full factual record before them, suggesting that a jury would be best equipped to make the determination.
“We don’t have any facts in this case,” Judge Catharine Easterly told Mark Freeman, a DOJ attorney arguing Tuesday. “We only have a bare complaint.”
Judge Joshua Deahl put forth a hypothetical: What if discovery turned up facts showing Trump’s presidential advisers told him not to respond but that he decided to go scorched earth on Carroll anyway?
“If you think the motivation Is 99.99% personal but .01% in the interest of the employer,” Easterly asked Habba, does that put it “in the scope-of-employment box?”
But the court also balked at some of the arguments being made by Carroll’s attorneys. Deahl presented Carroll attorney Joshua Matz a flip-side hypothetical, where discovery showed Trump had been told by his White House advisers that he needed to discredit Carroll in order to govern effectively.
The judges noted that how they handle the Carroll case will control how DC judges approach scope-of-employment questions that arise out of all sorts of torts cases brought in the district, including cases where the employer is not the federal government. They said they were struggling with the atypical posture of the Carroll case, where the employee and the employer were in agreement that the conduct fell within the scope of employment and the plaintiff was arguing that it did not.
Attorney General Merrick Garland has attracted scrutiny for maintaining the position – first set out under Attorney General William Barr – that the comments were part of Trump’s presidential conduct and thus he should be immune from the litigation.
In briefs filed recently with the DC Court of Appeals, the DOJ said Trump’s remarks were “without question unnecessary and abhorrent” but argued that, because engaging with the press was part of his job as president, he should not be personally liable for them.
Carroll, in her briefs, is asking the DC court to reject the “categorical rule” being put forward by DOJ and Trump “that whenever an elected official speaks publicly on any matter of public concern, he is acting within the scope of his employment.