DOJ Tries Again To Persuade A Court That Saying A Woman Is Too Ugly To Rape Is The President's Actual Job

All it would have taken was a cheek swab to make this thing go away. Just sayin'.

(Photo by Win McNamee/Getty Images)

E. Jean Carroll’s legal team had another wild day in court at the Second Circuit this morning. Fresh off their victory against the Tiki Nazis in Charlottesville, Joshua Matz and Roberta Kaplan were back in New York to go yet another round with the DOJ and Team Trump.

On June 24, 2019 Trump denied Carroll’s allegation that he’d raped her in a dressing room at Bergdorf Goodman twenty years earlier: “I’ll say it with great respect. Number one, she’s not my type. Number two, it never happened. It never happened,” adding later that she was “totally lying.”

Carroll sued Trump for defamation in New York state court, and after a year during which he ducked process and argued that a sitting president was immune from discovery, when Carroll was finally going to get to take that cheek swab and match it to DNA on the dress she wore the day she was allegedly assaulted, AG Bill Barr swooped in and removed the case to federal court under the Federal Tort Claims and Westfall Acts.

The decision to remove the case was non-reviewable, but the decision to substitute the government as defendant was not. In October 2020, US District Judge Lewis Kaplan ruled that the president is not an employee for purposes of the Federal Tort Claims Act, and even if he were, this conduct would have been outside the scope of his employment. Trump appealed, and the Justice Department went along with it, because Merrick Garland gonna Merrick Garland.

Which brings us to today, when the various sides assembled before US Circuit Judges Guido Calabresi, Denny Chin, and William Nardini to discuss the finer points of the FTCA, DC employment law, and whether the president’s IRL job is calling women who accuse him of rape ugly liars.

Judge Calabresi, 89, had many thoughts about this case. And most of them amounted to “if we’ve all agreed this is a case of DC law, why can’t we just let DC municipal courts tell us whether Trump’s comments fall within the scope of employment?”

Sponsored

In support of this solution he posed several interesting hypotheticals about presidential torts, despite heroic efforts by his former law clerk Judge Nardini and Judge Chin to rein him in.

What if the US President is golfing with the president of France and accidentally brains a spectator with an errant ball? What if he’s late for an event and urges his driver to speed up and they hit a bystander? What if the president is awarding medals, and he deliberately chokes one of the recipients to death? How about a scenario involving the fictional jurisdictions of Posneria and Calabresia. (Get it? Get it?)

The point of this was to tease out the outer edge of the president’s scope of employment — if indeed he is a federal “employee” for the purpose of the Westfall Act, which Judge Kaplan ruled he was not.

Trump’s attorney Alina Habba took a maximalist stance.

“You are taking a categorical approach, then: Whatever he does, whatever he says, it’s an act of the United States?” Judge Chin asked her.

Sponsored

“That is my position to some extent,” said Habba, who was clearly much more comfortable making culture war arguments about the presidency needing to be protected as an institution because “What are we going to do if Kyle Rittenhouse goes after President Biden for calling him a white supremacist?”

She also seemed to claim that Hillary Clinton used the Westfall Act to protect herself from liability over her server, which is par for the course from an attorney who just sent a “spoiliation” letter to the Pulitzer Committee threatening a defamation lawsuit if it doesn’t yank prizes from the New York Times and Washington Post.

Mark Freeman, from the DOJ’s Civil Division, got whacked around pretty good for saying that commenting on the news of the day, including rape allegations which preceded his presidency, was within the scope of his employment. Luckily Judge Calabresi had a solution for this problem, which was to kick it back to DC courts to make a decision on DC law, since federal courts are just “guessing” when it comes to state (errr, municipal?) precedent.

Joshua Matz, arguing for Carroll, pointed out that the Westfall Act and the FTCA were enacted not for the benefit of government employees, but to ensure recovery for people injured by them. So if the question is one of legislative intent, then protecting the president doesn’t factor in.

He did get into some trouble with Judge Nardini, who wondered why a denial was within the scope of the president’s employment, but the other, more insulting comments about Carroll being too unattractive to rape were not.

Luckily Matz got bailed out by an octogenarian tort professor, who pointed out again that this was a question of DC law best answered by the DC courts themselves. To which Matz graciously conceded he would have no objection.

At the end of the day, it’s Judge Calabresi’s world, and we’re all just living in it.


Elizabeth Dye lives in Baltimore where she writes about law and politics.