The Department of Justice on Tuesday dropped its argument that Donald Trump was acting within the scope of his office as president of the United States in 2019, when he allegedly defamed writer E. Jean Carroll, who had accused him of rape.
The DOJ’s move, disclosed in a letter to Trump’s and Carroll’s lawyers in federal court in Manhattan, means the department will no longer seek to effectively shield Trump from civil liability in Carroll’s pending defamation lawsuit against him, which is set for trial in January.
That effort, if it had been approved, would have killed Carroll’s lawsuit because the government can shield itself from civil liability under the doctrine of sovereign immunity.
The letter comes two months after a trial for a separate federal lawsuit by Carroll that ended with a jury ordering Trump to pay her $5 million for sexually abusing her in the dressing room in a New York department store in the mid-1990s, and for defaming her when he again denied her rape claim last year. The DOJ had not played a role in that lawsuit, as the alleged actions occurred outside of Trump tenure in the White House. Trump is appealing the verdict and jury award.
The DOJ on Tuesday cited a recent decision by a federal appeals court in Washington, D.C., which suggested Trump could be sued personally if his statements about Carroll did not have the purpose of serving the U.S. government.
The department also cited the fact that Trump’s allegedly defamatory statements about Carroll continued after he left the White House in early 2021, and that those statements are included in an amended suit Carroll filed against him last month.
“The Department of Justice is declining to certify under the Westfall Act … that defendant Donald J. Trump was acting within the scope of his office and employment as President of the United States when he made the statements that form the basis of the defamation claims in plaintiff’s Amended Complaint in this action,” wrote Brian Boynton, principal deputy assistant attorney general of the DOJ’s civil division.
“The Department has determined that there is no longer a sufficient basis to conclude that the former President was motivated by “more than an insignificant” desire to serve the United States Government,” Boynton wrote.
“We are grateful that the Department of Justice has reconsidered its position,” Carroll’s lawyer, Roberta Kaplan, said in a statement.
“We have always believed that Donald Trump made his defamatory statements about our client in June 2019 out of personal animus, ill will, and spite, and not as President of the United States,” Kaplan said. “Now that one of the last obstacles has been removed, we look forward to trial in E Jean Carroll’s original case in January 2024.”
CNBC has requested comment from Trump’s lawyers.
Trump, while president in June 2019, said Carroll was lying and motivated by money and political animus when she went public with her allegation that he raped her in Bergdorf Goodman in 1996 or 1997. Carroll sued him later in 2019 for defamation.
A year later, the DOJ, then under the control of Trump-appointed Attorney General Bill Barr, intervened in the lawsuit, arguing that because Trump was president when he made the comments at the center of the case, the United States should replace him as the defendant in the case.
U.S. District Judge Lewis Kaplan rejected the DOJ’s bid, but the department appealed the denial to the 2nd Circuit U.S. Court of Appeals, and continued pressing its argument even under the administration of President Joe Biden.
That appeals court later asked the federal appeals court in Washington to weigh in on the question of whether District of Columbia employment law allowed Trump to be sued for defamation for comments made as a government employee.
In its letter Tuesday, the DOJ noted: “The D.C. Court of Appeals, however, has now made clear that D.C. law does not hold that any statement, whatever its actual purpose, is by definition made for official purposes simply because it is made using official channels of communication.”
The letter also said: “Moreover, the circumstantial evidence of Mr. Trump’s subjective intent in making the
allegedly defamatory statements does not support a determination in this case that he was
sufficiently motivated by a desire to serve the United States Government.”