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The Westfall Act also lets DOJ step into the shoes of an individual federal defendant—here, Donald Trump—and substitute the United States. Once that happens, the defendant is no longer Trump-the-individual. The defendant becomes the United States, which cannot be sued for defamation under federal law. DOJ’s intervention in Carroll’s suit is thus an attempt to get her case thrown out entirely by claiming that Trump is totally immune from the lawsuit—even though a private person who did the very same thing that Trump is accused of would not be immune.
But DOJ has a problem. In order to step into Trump’s shoes, it had to file a piece of paper certifying that, when Trump called Carroll a liar, he was “acting within the scope of his office or employment at the time of the incident out of which the claim arose.” Although most federal employees would prefer to have the government pick up the tab for lawsuits filed against them, DOJ only jumps into suits at its discretion. It is optional.
Under the governing regulations, deciding whether to intervene involves a two-step test. First, the conduct must have occurred in the scope of the employee’s work. Second—and this is critical—“the Attorney General or his designee [must] determine[] that providing representation would otherwise be in the interest of the United States.”
Meanwhile, the U.S. Supreme Court has held that DOJ’s certification can be challenged before a judge. Presumably, Carroll’s lawyers will ask for discovery into why DOJ determined that Trump was acting as president when he claimed repeatedly that there is no factual basis for her rape allegations. Under New York law, one of the elements for determining whether an employee is acting in his official capacity is whether Trump’s act of publicly denying the rape and claiming he never met Carroll was in furtherance of the interests of his employer, the United States, and whether that act was done as part of his duties as president.
In sum, the federal judge assigned to this case will likely hear argument from the DOJ that defending Trump in a defamation suit involving an alleged rape while he was a private citizen somehow serves the interests of the United States of America.
This legal immunity ploy by Trump is all too familiar. The Supreme Court in Trump v. Vance just rejected a similar argument by Trump’s lawyers that his family, his banks, and his accountants are totally immune from a grand jury subpoena because of his position as president. The Supreme Court was hung up on the notion that nobody is utterly above the law—even Trump.
Too bad the Department of Justice no longer appears to care.
Posted from my iPhone/Mobile device
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