Federal Appeals Court Explains Why Trump Can’t Avoid E. Jean Carroll Defamation Judgment
The court found the motion was untimely, that Trump and the U.S. government waived their right to substitution, and that the principles of equity weighed against substitution after considerable litigation.
A federal appeals court explained on Friday why President Donald Trump cannot avoid the $83.3 million judgment against him in the E. Jean Carroll defamation case. The U.S. Court of Appeals for the Second Circuit held on June 18 that Trump could not avoid the judgment but waited until Friday to explain why.
Trump and the U.S. government sought to substitute the U.S. government as the plaintiff in the Carroll defamation suit using the Westfall Act, arguing that he acted in his official capacity when making the defamatory comments.
The Westfall Act provides a shield for federal employees against civil actions when acting in an official capacity. The Westfall Act allows for the U.S. to be substituted as the plaintiff in civil actions against the federal employee when the federal employee’s conduct at issue occurred in the employee’s official capacity.
Substitution can occur when the U.S. Attorney General certifies that the conduct occurred in an official capacity or when the federal employee files a motion arguing that the conduct occurred in an official capacity. In either case, the court must consider whether substitution is appropriate.
The Second Circuit held that the Westfall Act barred the substitution as untimely, that Trump and the federal government waived their right to move for substitution, and that the principles of equity barred the substitution. Had the court allowed substitution, Carroll would have received nothing since the U.S. cannot be sued for defamation.
In 2019, Carroll sued Trump for defamation in a New York state court. Carroll sued Trump for accusing her of lying when she alleged that Trump sexually abused her in a department store in the mid-90s.
In 2020, during Trump’s first term, the U.S. Attorney General certified that Trump made the defamatory comments in his official capacity. The certification removed the suit to the federal U.S. District Court for the District of Columbia. That court denied substitution, finding Trump was not a government employee under the Westfall Act and that he did not act in an official capacity when making the comments.
Trump appealed the denial to the Second Circuit. The Second Circuit reversed the district court’s finding that Trump was not a government employee, vacated the holding that Trump did not make the comments in his official capacity, and certified a question to the D.C. Court of Appeals (the D.C. equivalent of a state supreme court) to clarify whether Trump made the comments in the scope of his employment.
The D.C. Court of Appeals clarified D.C. law on the scope of employment but declined to opine on whether Trump’s conduct occurred in his official capacity. The Second Circuit then remanded the case to the district court to determine whether Trump, consistent with D.C. law, acted in the scope of his employment when making the comments.
The U.S. Attorney General, then under the Biden administration, rescinded the Trump-era Westfall Act certification. Neither Trump nor the U.S. pursued the matter of Westfall Act substitution further, and Carroll’s suit proceeded, resulting in a verdict for Carroll.
On April 11, nearly three months after the start of Trump’s second term, Trump and the U.S. petitioned the Second Circuit for substitution under the Westfall Act. The Second Circuit rejected the substitution for three reasons.
First, the court found the petition for substitution untimely because the Westfall Act requires certification “before trial.” Second, because neither the U.S. nor Trump pursued substitution after the D.C. Court of Appeals clarified D.C.’s scope of employment law, both had waived the right to pursue substitution. Third, the court found “[f]airness and equity” required it to reject the substitution:
After several years of litigation, at substantial cost to all parties, and a significant victory for Carroll, it is simply too late to bring this motion. Fairness and equity dictate that the motion to substitute be denied.
The Second Circuit’s opinion:
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Comments
It is sad when Courts beclown themselves to forward a political rather than legal agenda.
If the law on the statute of limitations changed after Trumps alleged involvement with this woman, why wouldn’t the ex post facto rule apply? The allegation was filed after a new law was enacted that apparently made an earlier act a crime, since the earlier act ended the time in which an action could be filed (ex post facto). So it should be dismissed on constitutional grounds. She waited too long.
“Carroll sued Trump for accusing her of lying when she alleged that Trump sexually abused her in a department store in the mid-90s.”
Carroll falsely accuses Trump of rape and that isn’t defamation but he correctly points out that’s she’s a liar and that is defamation.
Got it.
The chances that Trump engaged in anything sexual, legal or otherwise, with Carroll are equal to the chances that I once had a steamy affair with Melania (IOW, it did not happen).
s/plaintiff/defendant/g
So where does this leave this lawsuit exactly?
I believe Trump has an appeal on the merits pending in New York?
Is there anything else outstanding?
He can appeal this to SCOTUS.
Trump should sue her for defamation. Tie it up in the courts until she dies of old age. And bleed her finances dry.
Fairness and equity dictate that Trump prevail in the underlying bogus case, a comedy of legal errors where he did not stand a chance.
I don’t think he should give up on the waiver. The appellate court’s statutory analysis and application of the “principles of equity” in this case are screaming for review. Just for starters, where did the plain text of the Westfall Act allow the new Biden DOJ to withdraw the prior DOJ’s conclusive determination that Presideint Trump had been acting within the scope of his employment? There is nothing in the statute that would allow this in the first place. Seems they find wiggle room for creative applications of the law only where the result harms President Trump.
This award should be thrown out on any of a hundred different weaknesses and blatant perversions of the case and its administration. I don’t know why the Trump team went with this “substitution” argument when the case, itself, was a sick joke that collapsed of its own weight – not to mention New York having changed laws to target Trump with this case, specifically – which is as illegal and despicable as you can get.
1, The substitution path had to be Plan A, simply because it was the most straightforward way of getting rid of the case. Even if there was only a tiny chance that it would succeed, it was still worth pursuing simply because if it had succeeded the entire case would have disappeared. As the post says, the United States is immune to defamation suits. Make the case Carroll v the President, rather than Carroll v Mr. Trump, and suddenly there’s no case at all. OK, so Plan A has failed, as it was always likely to. Oh well, on to Plan B.
2. The NY law was not changed for the purpose of targeting Trump. It was changed as the result of a many-years-long campaign by people who claimed to have been victims when they were children, and wanted a second chance to sue. After that campaign succeeded it was inevitable that those claiming to have been adult victims would also demand the same chance, and that the legislature would eventually give it to them, because it made them look good. Many people took advantage of this act, and it may even be that some of them were genuine. Carroll just jumped on the bandwagon.
2. Opportunity knocked, in other words.
“Many people took advantage of this act, and it may even be that some of them were genuine.”
Maybe a few. Possibly. Far more innocent people will be plagued through civil court by bogus accusations that they can’t defend against because it has been so long and railroaded into bankruptcy or insane settlements. It’s a sad state of affairs when multiple innocents are dragged bloody through the courts in search of one or two guilty. J’accuse!
its not so much about “believe all women”
its about destroy the patriarchy
and that is important
b/c the true goal of the left is not justice
its about destroying the natural hierarchy …..men women and children
you see it in the nonsense of
not taking the mans name in marriage
of using the term..”ms”
etc etc
Really? Those are your 2 examples of the “nonsense”? Why on Earth should it bother you if a woman wants to use “Ms” instead of Miss or Mrs?
Look at it like this: Boys are known as “Master”, but adult men are known as Mister (Mr). It matters not whether they are or have been married.
For women it is different. For example, I am a widow. My husband has been deceased for 11 years. Before I was married, I was “Miss”, and if course I was a Mrs through 25 years of marriage. Neither of those titles seems appropriate for me now – although it could be argued that both could work. I much prefer being Ms, though, as an alternative to them!
Being froced is always a bother to me…not you..b/c you capitulate easy
“Thank you, Law & Order, Special Victims Unit.”
Can Carroll be sued for a copyright violation?
I thought she was wearing panty-hose. LBJ famously settled that. Evidence.
‘That’s the worst thing to happen since pantyhose ruined finger f*cking.’
A lesson not to show contempt to the jury ever no matter how horrible and ridiculous the case is. The appeals process is not over but again if you are sued do not show contempt to the jury.
That said I do not know I am right but I am generally a fan of juries and assume that without the contempt, with Trump testifying, and with much better lawyers on Trump’s side Trump would have won the case.
Or the jury was irrelevant other than composed of a pool that was overly biased from before the trial. The judge is who committed the errors compounded by the jury. The trial could have gone a much different way. In other words, it deserved contempt, but that mattered hardly, if at all.
In short, much like the Alex Jones railroad trial, the judge decided what the jury should see, what they should hear, and gave an unmistakable ‘suggestion’ on which way they should vote. The appeals have been heard by judges who are just as happy to see Trump burn, and all they have to do is nod along with the music. It would do my heart good to see the SC bust this rotten case into pieces and order it dismissed in toto. Awarding damages to Trump would be nice, but I don’t think the SC can do that.
The 2nd Cir Court of Appeals has always been willing to carry water for the left. They see it as serving a higher goal.
Can someone say the Clinton Foundation made eyes at them no that slick could be handed to jail?
The old joke asks, why go through the trouble of getting married? Just buy a house and then give it to a woman you hate.
This case shows you end up in the same place even if you skip the trouble of getting married.
Trump says he didn’t know this woman at all, and I see no reason not to believe him.
And she was paid to bring the case by a billionaire who (quelle surprise) hates Trump.
This case shows you end up in the same place even if you skip the trouble of
getting marriedhaving sex.FIFY
Or shaking hands.
He probably had a consensual romp with her, which she characterized years later as assault.
Maybe, but he says that when she accused him he didn’t even know who she was. What reason have we to think he lied?
We have more reason to “think” he lied than not. He was a notorious playboy and any normal man faced with such a stale, decades old accusation could safely have denied the whole thing, safe in the knowledge no rational prosecutor would file charges; and at the same time protecting his reputation.
I think if most people on this site were forced to bet the family farm they would bet it was a quickie romp.
but,..her story is so laughably ridiculous.
No, it is not. She is a socialite, bimbo who ran in Trump’s circles. It is hardly unbelievable that one of her many sexcapades that she opportunistically dredged up years later would be hazy in her memory. Yes, she is a nut. Yes, Trump was treated unfairly. But don’t be such a naive dunce.
Trump is also a braggadocio who does not shy away from speaking his mind in ways that surely make his lawyers cringe. If he says he didn’t know this person that seems like a fairly plausible statement to me.
That’s why he is pictured embracing her at gala events.
Celebrity pics. If you have your picture taken with a celebrity who has never met you before, do you think he remembers you five minutes later, let alone five days or five years later?
Yes, he was a notorious playboy. He openly admitted it, bragged about it, was proud of it. But I’d think that if he really did have sex with someone he’d remember them even years later, at least once they reminded him where he last saw them. Whereas if his only interaction with her was posing for a picture he’d be almost certain not to remember her.
I’m pretty sure I would bet the family farm on his never having had sex with her, at all. And I think the vast majority here agree.
Also, you used the phrase “rational prosecutor.” That should would be correct if you instead wrote “unbiased prosecutor interested only in the proper application of the law.” What they did to him by abusing the law was very rational. But it was also very biased and improper application of the law.
Right, he beds porn stars at his Florida residence with his wife down the hall, brags about grabbing pussy, but won’t do an attractive babe who comes on to him in a dressing room. Brilliant. Your quibbling over adjectives, which you somehow deem brilliant, is irrelevant.
It’s the exact plot of a LAW & ORDER episode.
NO ONE, except maybe you and useful idiots believe it was a ‘quickie romp’
So, what. It is a common occurrence. Can’t help it if you’re jealous, but people get off doing it in public places, elevators, jets, restaurants, you name it.
Trump is a germophobe who chases gorgeous younger women. Sex in a dirty public place with an older woman with marginal looks – who couldn’t even nail the YEAR the encounter happened . . . My bet is 100% BS
You lose. She told the story contemporaneously to a friend. Her marginal looks at the time were enough for Trump to mistake her for his wife in a photograph.
You expect us to believe that this left-wing loon had a undetected ‘fling’ with one of the most important and famous real estate developers in New York, somebody who had reporters panting along with every move he made, and she’s so stupid she can’t remember any of the dates, times, or places they met, and nobody else in the known world is able to back up her story? You might as well think she was sleeping with Santa Claus and the Easter Bunny. There’s just as much evidence there.
You hate Trump, therefore everything he says you disbelieve.
You hate Trump, therefore anything bad said by anybody else against him is somehow the absolute truth.
A consensual romp in a dressing room at Bergdorf Goodman? Patently absurd, Only a lunatic would make up a story like that.
Lol, you guys never had the opportunity. What dull lives you lead. In my youth I did the same thing.
So you’re confessing to raping E Jean Carroll? Maybe it was YOU then, in that Bergdorf Goodman.
If I were on the jury, I would maintain she was lying and vote for Trump. I would say all the things you are saying. But, I wouldn’t believe it.
So, in the last bastion of free speech in the world, one can label a man “rapist”, but he cannot respond by saying “She is a liar”?
WTF
Special rules for Trump.
He can respond that way, but if it’s not true then he has defamed her, just like any other accusation. Why would there be a special rule for this one kind of accusation?
Naturally the onus is always on the plaintiff to convince the jury, on the balance of probabilities that the statement being sued for was false. If the jury can’t decide whether the accusation is true (whether it’s the alleged rape or the alleged lie) then the defendant wins, because truth is an absolute defense to defamation.
She waits 25 years to file the lawsuit — but ‘it’s simply too late’ for Trump to bring that motion.
In addition, she doesn’t know when the event happened and the attire she claimed she was wearing, didn’t exist at that time.
Yet, Trump gets slammed for calling her a liar.
Not the same thing at all. Assuming for the moment that something actually happened (which I don’t believe is the case), she did nothing, so his position wasn’t prejudiced, and she never waived any right she had.
That’s not at all the same as here, where the USA waived the right to replace him as the defendant, the case proceeded to verdict and award on the basis that he was the defendant, and only now does the US withdraw its waiver and move to replace him after all. The time to do that was before the trial, not after.
That’s not to say the court is necessarily right, just that your argument against it doesn’t make sense. It may still be wrong for other reasons.
After the Kavanaugh confirmation hearings, I thought I had heard it all, but EJ Carroll and her bogus dressing room assault story at Bergdorf Goodman, no less, was even more reprehensible and malicious. It’s sickening that she was rewarded for her lies.
How can substitution be rescinded by a different administration if it was already granted by the 2nd Circuit for the previous administration?
It can’t.
But the Biden junta didn’t give a damn about law.
It wasn’t granted. Had it been, the case would have instantly disappeared.
So, A files a suit accusing B. B responds stating that the event(s) A claims happened, in fact did not happen. In plain English, B is saying that A’s claim is untrue, a lie. So B has defamed A with that response?
What am I missing?
You’re missing the actual question that was decided here. The claim was that B was speaking as a federal official when he stated that event(s) did not happen. Courts said “Ah, nope. You spoke as yourself.” B appealed. 2nd Circuit said “Courts got it wrong. Let’s go ask DC Court of Appeals if B should be considered himself or a gov’t spokesman.” Court of Appeals just said “When B says A is lying, he does so as himself, not as a spokesman for the federal gov’t.”
This whole thing today is mostly about whether Trump can short-circuit the defamation accusation as part of his appeal. He can’t. So he has to do it the hard way.
He can’t be sued for what he says in his response to the suit. But if he goes outside the court and publishes a claim that the plaintiff is lying, and it turns out that she wasn’t lying, then yes, he has defamed her. Why would a claim that someone is lying be treated differently from any other defamatory claim?
But she *is* lying. Nobody with a speck of common sense can look at the actual facts that came out in the trial and come to the conclusion they ever met at all other than one photo line with literally hundreds of pictures one after another. That’s the entire point. He’s innocent of the charges unless proven otherwise, and of the hundred-steps in that ladder of proof, not even the first one has seen any kind of use.
Oh, minor quibble. She could merely be delusional instead of lying if she made the whole thing up inside her head and believes it. That’s psychopathic behavior, but it happens even in otherwise normal-ish people. Psychopaths cling to these imaginary scenarios like glue, and when confronted by facts disproving individual elements of their pseudo-memory, the memory abruptly changes to match.
Well, yes, she is lying. But that’s a question of fact, not of law. The jury wrongly found that she wasn’t lying, therefore as a matter of law he is liable for defamation. He can appeal that decision, and is doing so, but amatuerwrangler’s question was about the law, not the facts.
she tried to finger him as having fingered her
but then she couldnt remember and as discussed before. ny “Extended “ the law ( they said it was for harvey weinstein) so that they could get trump
same way letits james said she was going to get him and all the rest said they were going to get him
he is the teflon Don
and his love for america sickens the communistnazi blmplo rabid rabies infested rodents