A federal appeals court in New York heard arguments on Friday over whether the Justice Department should take up the defense of former President Donald Trump in the defamation action brought by advice writer E. Jean Carroll, who accuses him of raping her at a department shop in the late 1990s.
According to BuzzFeed News, one of the most significant moments of the hearings occurred when one judge asked Trump’s legal counsel how the former president’s words about Carroll were part of his official duties.
“In one interview responding to Carroll’s accusation, he was quoted as saying, ‘I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened,’” reported Zoe Tillman. “That comment jumped out to Second Circuit Judge Denny Chin, who pressed Trump’s personal attorney Alina Habba to explain why the court should find that making that kind of comment was within Trump’s ‘scope of employment as president. ‘Who is he serving when he says something like, ‘she’s not my type?’ Is he serving the United States of America when he makes that statement?’ Chin, who was confirmed under former president Barack Obama, asked.”
“Habba replied that it was part of his job as president because he had to respond to Carroll’s allegation to the extent it affected his ability to serve,” according to reports.
In June, the Justice Department revealed that it is still attempting to take over the case. They requested a suspension of all proceedings in September, but the motion was granted.
During Carroll’s lawyer Joshua Matz’s arguments, the judges debated the benefits and drawbacks of the court adopting precedent that would limit the circumstances in which an employer — in this case, the federal government — is legally accountable for its workers’ actions. The court is also debating whether Trump should be classified as an employee at all under the Government Tort Claims Act and the Westfall Act, which protect federal officials from being sued as individuals for doing their duties.
Since Trump’s job status at the time was rooted in the post he held in the capital, much of the hearing focused on whether and how the New York-based federal appeals court should apply legal precedent made by the local court system in Washington, DC.
Several times during Friday’s hearing, Calabresi pondered if it would be better for the circuit to ask the DC Court of Appeals — DC’s equivalent of a state supreme court — to answer some of the case’s questions. These included determining what action was within a person’s “scope of employment” and whether the ramifications of holding the employer accountable – in Carroll’s instance, the fact that she would likely be left without a legal avenue forward for the alleged defamation — should be considered.
Trump and Habba are ready for the possibility that the appeals court may agree with the district court judge that the Justice Department cannot intervene in the case while the appeals court decides what to do next. Habba requested earlier this week that Trump’s answer to the litigation be updated to include a counterclaim accusing Carroll of breaking New York’s anti-SLAPP law. The anti-SLAPP law, which was revised by state lawmakers a year ago, is intended to provide defendants an early opportunity to have a defamation action dismissed if they can establish that the objective is to prevent them from exercising their freedom to talk about “public concern” issues.
Carroll’s lawyer, Roberta Kaplan, described the filing as a “transparent” attempt to postpone the lawsuit.
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