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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