Another Day, Another Lawsuit
The headlines on September 24 carried a by-now familiar story: someone else was suing President Donald Trump. This time, the plaintiff is the president’s niece Mary Trump, who claims that the president and his siblings committed fraud to deprive her of her rightful share of the Trump family business. Although the alleged wrongdoing occurred between 1981 and 2001, the complaint indicates that Mary Trump learned about it only in October 2018, when the New York Times published an investigative report into Donald Trump’s “suspect tax schemes.” The New York state statute of limitations for belatedly discovered fraud requires a plaintiff to file suit within two years of discovering it. That arguably makes this lawsuit timely, unlike other potential civil claims for alleged misconduct pre-dating Trump’s tenure in office.
Mary Trump’s lawsuit is not the only one currently pending against Donald Trump for acts he allegedly performed in his personal, rather than official, capacity. In June 2019, writer E. Jean Carroll came forward with an allegation that Donald Trump raped her in the dressing room of the Bergdorf Goodman department store in Manhattan in 1995 or 1996. In doing so, she joined a group of twenty women who have accused President Trump of sexual misconduct in the decades before he took office, including on the campaign trail—a list that recently grew with Amy Dorris’s allegation that Trump sexually assaulted her at the US Open tennis tournament in 1997. In response to Carroll’s allegation, Trump denied having ever met Carroll and stated: “Number one, she’s not my type. Number two, it never happened.” In addition to saying that Carroll was “totally lying,” Trump issued a statement repeating his denial and castigating “those who make up false stories of assault to try to get publicity for themselves, or sell a book, or carry out a political agenda.” When ELLE magazine fired Carroll from its editorial team several months later, Carroll attributed this decision to the fact that Mr. Trump had “ridiculed my reputation, laughed at my looks, & dragged me through the mud.” (Trump also made personally disparaging comments in response to Mary Trump’s publication of a book about the Trump family’s pathologies, which the late Robert Trump had attempted unsuccessfully to enjoin.) After she lost her livelihood, Carroll sued Trump for defamation in New York state court.
Prelude to a Substitution
President Trump is no stranger to litigation. New York Times correspondent Peter Baker has stated that “[i]t requires a scorecard just to keep track.” The lawsuits go in both directions. For example, Trump criticized “crooked Adam Schiff” for his “long, beautiful statement” to Congress that Trump claimed “fraudulently mischaracterized” his call to the President of Ukraine. Trump insisted that Schiff should “pay a big price” for “mak[ing] up a conversation.” In addition to suggesting that Schiff might be arrested for treason, Trump said that he told his lawyers to sue Schiff along with House Speaker Nancy Pelosi. When the lawyers responded that Schiff “has total immunity because he was in the great chamber, talking to congressmen, talking to the American public,” Trump recounted that he said they should “[s]ue him anyway,” since “[e]ven if we lose, the American public will understand.” (Representative Schiff said at the time that he was trying to convey “the essence” of Trump’s message to Zelensky, which had already been described in a readout released by the White House.)
When Trump said that he told “my lawyers” to sue Schiff, he was likely referring to attorneys in the Department of Justice, who represent the United States in litigation. The president and other senior officials are named routinely as defendants in litigation challenging official U.S. policies; when another person steps into that official position, the caption changes while the underlying suit remains the same. By contrast, other legal matters are handled by private counsel, even if they arise during the president’s term in office. This was the case, for example, with Paula Jones’s sexual misconduct lawsuit against sitting President Bill Clinton.
President Trump has been rather litigious during his time in office, leading one author to dub him “Plaintiff in Chief.” He has filed suit against the New York Times, the Washington Post, and CNN for allegedly defaming his reelection campaign by publishing opinion pieces that portray the campaign as “in cahoots with Russia.” Indeed, the campaign’s biggest legal costs are reportedly to the firm that has brought these suits, and that defended him against a defamation lawsuit brought by Stormy Daniels over an allegedly false statement he tweeted while in office. (The firm also represented Trump in a subsequent lawsuit against Daniels seeking attorney’s fees and penalties). The president is also engaged in ongoing litigation about his refusal to “unblock” certain Twitter users from his Twitter account, which he uses to announce important policy updates.
The conflation of personal interests and public positions exemplifies the Trump presidency. This approach can complicate efforts to apply legal frameworks that depend on separating the actions a public figure takes in his private capacity from those he taken in an official capacity. Senior administration officials have also deployed these categories strategically including, for example, Secretary of State Mike Pompeo’s decision to film a speech for the Republican National Convention during a taxpayer-funded visit to Jerusalem.
The conventional view has been that most of what a sitting president does, she does in her official capacity. In Trump’s view, however, the presidency also exists to further his personal interests. This has led some attorneys, including some state attorneys general, to bring suits for violations of provisions such as the Constitution’s emoluments clause against Trump in his personal capacity, as well as his official one. This, in turn, has prompted Trump to deploy a raft of new legal arguments about a sitting president’s immunity from personal capacity suits. The ability to use law to constrain the president’s actions is further challenged by Trump’s view that “I have an Article 2, where I have the right to do whatever I want as President.”
The Role of the Department of Justice
The ability to deploy innovative legal strategies to shield President Trump from personal liability for his actions while in office depends to a large extent on the Department of Justice. As part of the Executive Branch, the Department can be expected to defend the Office of the President vigorously, including by advancing broad theories about the range of powers associated with that office. This is not intrinsically pathological, as long as the other branches remain willing to push back against excessively broad theories.
A much bigger problem arises when the Department of Justice sees fit to champion the president’s personal interests, which has been seen historically as more properly the provenance of the president’s private, personal lawyers and, where necessary, the White House Counsel (who holds a staff position as part of the Executive Office of the President, rather than the Department of Justice). This is precisely what many have criticized Attorney General William Barr for doing. A July 2020 ethics complaint from four former DC Bar association presidents and others emphasizes that “Mr. Barr’s client is the United States, and not the President. Yet, Mr. Barr has consistently made decisions and taken action to serve the personal and political self-interests of President Donald Trump, rather than the interest of the United States.”
Against this backdrop, one can reasonably expect that any lawsuit against a sitting president will raise questions about whether the suit is against the person of the president or the office of the president, and whether the suit is against the president in her “individual capacity” or in her “official capacity.” There is quite a bit of case law about how to thread this needle in suits against other types of state and federal officials, but relatively little direct guidance about what happens when the defendant is a sitting president of the United States. This may be because there have been tens (if not hundreds) of thousands of lower-level officials, and only a few dozen presidents. It might also be because prior presidents have not attempted to run multinational business empires while in office, and have maintained somewhat more decorum in their public interactions. Moreover, the Supreme Court in 1982 held that presidents are entitled to “absolute immunity” from damages for any misconduct arising within the “outer perimeter” of their official duties—a defense that often moots other procedural questions about suing the president.
Carroll v. Trump
Fast forward to November 2019, when Carroll filed a complaint against Trump in New York state court for defamation, a common law tort. In the complaint, she stated that, although she had confided in two close friends after Trump raped her, she had not reported the crime to the police because she “reasonably concluded that if she accused Donald Trump of rape he would bury her in threats and lawsuits, and she would probably lose her reputation, not to mention everything she had worked for and achieved.” In addition, “[s]he struggled with the guilt that, somehow, though she had fought to protect herself from his attack, it was her fault that Trump had raped her because she had entered that Bergdorf dressing room.” However, “in late 2017, when the Harvey Weinstein scandal and its aftermath signaled a profound shift in how American society responds to accusations of sexual misconduct by powerful men[, i]t suddenly seemed possible that even Trump could be held to account.”
When Carroll published her account of the rape in a book that included descriptions of “her experiences with various men,” Trump responded with statements that Carroll alleges he “knew … were false,” and that she alleges he made “with reckless disregard for their truth or falsity.” She therefore sued him “only in his personal capacity” for statements by him published on June 21, 22, and 24, which she alleged “inflicted wide-ranging and substantial harm” because she “is an advice columnist whose reputation is the very lifeblood of her trade.”
Trump responded in part by seeking a stay of the proceedings on various grounds. On August 6, 2020, the trial court denied the motion for a stay and calendared a telephonic conference for September 30. The next stage in the state court litigation is discovery, in which the president could be compelled to answer questions in a deposition and even to submit a DNA sample, since part of Carroll’s burden as a plaintiff in a defamation suit will be to show that the president’s statements were false.
On September 8—the day Trump was due to turn over some of the required discovery—the Department of Justice filed a certification in the state court asserting that Carroll’s allegations against Trump arose within the scope of Trump’s employment. Under a 1988 statute known as the Westfall Act, DOJ’s certification immediately converted Carroll’s common law tort suit in state court into a suit against the United States under the Federal Tort Claims Act—and automatically removed the case from state court to federal court. The timing was hardly a coincidence; as one of us suggested in an interview on September 9, one would ordinarily suspect the Department to step in at the “earliest moment. … That they waited until yesterday suggests that they were either sandbagging the state court, or they came to this position recently.” Indeed, Torts Branch Director Jim Touhey, who signed the certification that Mr. Trump “was acting within the scope of his office as the President of the United States at the time of the alleged conduct,” indicated that the made the certification “on the basis of the information now available with respect to the incidents alleged in the complaint”—although since the alleged incidents involve public statements, one wonders what relevant information might be available “now” that wasn’t available at the time Carroll filed her suit.
Whatever the motive, the DOJ certification has three immediate effects. First, and perhaps most importantly to Trump, it freezes the state-court discovery by removing the case to federal court. Second, it provides the new defendant—the United States—with a powerful argument for dismissing the lawsuit, because the Federal Tort Claims Act does not authorize claims for defamation against the federal government. Third, even if Carroll is able successfully to contest the certification (more on that in a moment), the case will remain in federal court—and any discovery would almost certainly be pushed back well into next year at the earliest. In other words, whatever its propriety, DOJ’s Westfall Act certification means Trump wins (by delaying the matter until after the election) even if he loses.
Challenging a Westfall Act Certification
But is the certification itself proper? Under U.S. law, the distinguishing feature of an “official capacity” suit is that the relief runs against the governmental entity on whose behalf the officer acted, not against the officer herself. As noted above, the Westfall Act allows the Department of Justice to substitute the United States as the defendant in any tort suit seeking damages against a federal employee for conduct she performed in her official capacity by converting such suits into claims under the Federal Tort Claims Act (FTCA). Indeed, the Westfall Act provides the exclusive remedy for “injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting with the scope of his office or employment,” although it does not preclude such claims for violations of the Constitution. And the Supreme Court has controversially interpreted the Act to be exclusive even when no claim is available under the Federal Tort Claims Act—in which case the Westfall Act effectively destroys the plaintiff’s claim, as it would here. That is because the FTCA explicitly preserves the United States’s sovereign immunity from claims arising out of libel, slander, misrepresentation, or deceit, among other intentional torts.
Although the timing of the certification in Carroll’s case is highly suspicious, the Westfall Act itself allows the filing of such a certification “at any time before trial,” a far more generous timeline than that provided by other federal removal statutes. It also allows the court to substitute the United States as a defendant even if the Department of Justice does not make a substitution request. A certification by the Attorney General is conclusive for purposes of removal, but it is subject to judicial review for purposes of substituting the United States as the defendant. If the Attorney General refuses to issue a certification, the defendant may “at any time before trial” petition the court to certify that she was acting with the scope of her office or employment. A defendant challenging the Attorney General’s refusal to certify that the acts alleged in the complaint were within the scope of her employment bears the burden of proof with respect to each alleged act.
Is the President Covered by the Westfall Act?
Under the Westfall Act, then, the propriety of DOJ’s certification in Carroll’s case reduces to two questions: Is the President one of the defendants who is covered by the statute? And, if so, do Carroll’s allegations against him arise out of the scope of his employment?
The case law is on the president’s side, assuming that the Westfall Act applies.
Common sense may well suggest that the answer to the first question is yes—that anyone who draws a government salary is, and should be, treated the same for purposes of whether claims against them can be certified under the Westfall Act. But the statutory text is not self-evident on this point. In particular, the Act applies to anyone who is an “employee of the government,” which the FTCA defines to include:
(1) officers or employees of any federal agency, members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty under section 115, 316, 502, 503, 504, or 505 of title 32, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation, and (2) any officer or employee of a Federal public defender organization, except when such officer or employee performs professional services in the course of providing representation under section 3006A of title 18.
Tellingly, it is black-letter law that the president is not part of a “federal agency” for purposes of the Administrative Procedure Act, and similar analysis might augur in favor of excluding him from the scope of the FTCA, as well. To be sure, courts have nevertheless applied the FTCA to the president in prior cases, but without any detailed analysis of this specific statutory issue. (And, more recently, courts have not only become sharper adherents to textualism, but also skeptical in other contexts of applying generally applicable statutory and constitutional provisions to the president in the absence of specific text.)
At the very least, then, the certification in Carroll’s case could be challenged on the ground that the president is not subject to the FTCA at all—including the protections provided by the Westfall Act. Because Congress rushed to enact the Westfall Act in 1988 in response to a Supreme Court decision that found immunity only for discretionary acts, it is exceedingly likely that the president’s immunity from suit was not top of mind. That being said, even if the Westfall Act does not apply to the president, this does not mean the president lacks immunity—to the contrary, as noted above, the Supreme Court has found that the president is absolutely immune from damages liability for acts that fall even within the “outer perimeter” of his duties of office. In the court’s perhaps overly sanguine view, this does not “place the President ‘above the law,’” because “[t]here remains the constitutional remedy of impeachment,” as well as other “incentives to avoid misconduct” such as “a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for his historical stature.”
Was the President Acting Within the Scope of His Employment?
At least superficially, the stronger argument against certification in Carroll’s case might appear to be that a president who defames a private citizen with respect to allegations about his misconduct prior to his tenure as president is acting outside the scope of his employment. Here, however, the case law is on the president’s side, assuming that the Westfall Act applies. Most specifically, a 2006 D.C. Circuit decision specifically held that a member of Congress was acting within the scope of his employment when he made allegedly defamatory comments about a nonprofit organization in the course of explaining the reasons for his marital separation in response to a reporter’s inquiries. As the court wrote, “[s]peaking to the press during regular work hours in response to a reporter’s inquiry falls within the scope of a congressman’s ‘authorized duties.’” Nor is the reasoning in that decision significantly out of step with other cases.
The Attorney General’s certification here provides the president with prima facie evidence that he was acting within the scope of his employment when he made allegedly defamatory comments about Carroll. The burden then shifts to Carroll to allege specific facts that, if true, would establish that Trump was acting outside the scope of his employment. Much of the relevant case law comes from the D.C. Circuit, which does not directly bind the New York federal court that will face this question in the first instance. However, it is fair to say that courts have generally taken a remarkably capacious view of the “scope of employment” test for federal employees, focusing far more on the context in which the defendant was acting than on whether their substantive conduct could fairly be portrayed as part of their job.
Because Trump’s alleged acts occurred in D.C., the D.C. law of respondeat superior provides the legal test for the scope-of-employment question. D.C. law generally construes this doctrine liberally, although it does “exclude[e] from the scope of employment all actions committed ‘solely for [the servant’s] own purposes.” The district court could find that Carroll is entitled to at least limited discovery on the question whether Trump’s conduct was solely to accomplish his “independent malicious or mischievous purposes”—a question on which “[t]he state of the employee’s mind at the time the act is committee is material.” There may well be a gap between the state of the law on “scope of employment” and common sense, but it’s a gap that favors federal employees, at least until and unless Congress takes up proposals to clarify (and narrow) this understanding. In that sense, the DOJ certification in the Carroll case may be the first exposure for many to the stunningly broad set of abuses for which neither the federal government nor its officers can be held liable. However, it could also provide an opportunity to test the limits of even liberal “scope of employment” doctrines in light of the intensely personal motivations that appear to drive so many of this president’s public acts and statements.
While there are cracks in the armor offered by DOJ’s Westfall Act certification in Carroll’s case, the legal questions it raises, even if they are resolved in Carroll’s favor, will necessarily kick the case well into next year (and, possibly, beyond the end of Trump’s tenure as president). What cannot be gainsaid is that, the suspicious timing notwithstanding, there is nothing frivolous about DOJ’s certification; it is unquestionably plausible, and it may well be substantively correct under current law, depending on the president’s motivations.
In that sense, the Carroll case is yet the latest in a long line of examples of how existing law is woefully inadequate in two respects: In general, it is woefully inadequate when it comes to holding individual federal officers and the federal government liable for many (if not most) torts, including constitutional torts. And specifically, it is woefully inadequate for holding the president of the United States accountable, even in cases that stem from alleged misconduct long pre-dating his time in office, and that has very little to do, in reality if not in law, with his formal responsibilities as president. Not for the first time, but hopefully for one of the last, President Trump has highlighted serious structural flaws in our system that Congress and the courts have neglected for far too long. Unfortunately for Carroll, but perhaps not for Mary Trump, any response to that neglect will almost certainly come far too late.