Trump must remain defendant in rape defamation claim case filed by E. Jean Carroll, judge rules in rejecting DOJ bid

Key Points
  • President Donald Trump must remain a defendant in a lawsuit that accuses him of defaming the writer E. Jean Carroll after she claimed he raped her in the mid-1990s, a federal judge ruled Tuesday.
  • Judge Lewis Kaplan rejected arguments by the Department of Justice that Trump was acting as a government employee when he said Carroll was lying and motivated by money.
  • The ruling came a week before Election Day. Trump is seeking a second term but faces a stiff challenge from former Vice President Joe Biden.
President Donald Trump rape accuser E. Jean Carroll and her lawyers arrive for her hearing at federal court during the coronavirus disease (COVID-19) pandemic in the New York, October 21, 2020.
Carlo Allegri | Reuters

President Donald Trump must remain a defendant in a lawsuit that accuses him of defaming the writer E. Jean Carroll after she claimed he raped her in the mid-1990s, a federal judge ruled Tuesday.

Judge Lewis Kaplan rejected the Department of Justice's last-minute effort to have the U.S. government replace Trump in the lawsuit.

The DOJ argued that the president was acting as a government employee when he said Carroll was lying and motivated by money with her allegation that he attacked her in a New York department store dressing room.

Because of that, the DOJ had argued, the government should be the defendant in Carroll's lawsuit, not the president.

Kaplan flatly denied that argument.

"The President of the United States is not an employee of the Government within the meaning of the relevant statutes," Kaplan wrote in a 59-page ruling released in U.S. District Court in Manhattan.

"Even if he were such an employee, President Trump's allegedly defamatory statements concerning Ms. Carroll would not have been within the scope of his employment. Accordingly, the motion to substitute the United States in place of President Trump is denied."

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The decision effectively saves Carroll's case from being dismissed outright.

Attorney General William Barr said last month that if the government was swapped in as a defendant, as he said it should be, then the case would be dismissed altogether, because the government had not waived sovereign immunity, as the protection from the government being sued is known as.

Kaplan's ruling came days after an aborted court hearing in which a DOJ lawyer was barred from the courthouse due to New York's coronavirus rules. The lawyer then refused to argue the government's claim on the telephone.

The decision also comes a week before Election Day. Trump is facing a strong challenge in his bid for a second term from Democratic nominee Joe Biden, the former vice president.

"This win is for every woman in the country!" Carroll wrote in a tweet after the ruling was released.

A DOJ spokeswoman declined to comment when asked if the department will appeal the ruling. If the judge's decision stands, the department will also be barred from defending Trump in the case.

The department sought to intervene in the case last month, nearly a year after Caroll's suit was filed in New York state court, and only after the White House asked it to do so, Barr has said.

The DOJ's move came on the heels of rulings by a state judge that would have compelled Trump to submit to questioning in a a deposition by Carroll's lawyers, and to submit to a DNA test to see if his genetic material is on a dress that Carroll has said she wore during the alleged attack.

In a statement, Carroll said, "When I spoke out about what Donald Trump did to me in a department store dressing room, I was speaking out against an individual. When Donald Trump called me a liar and denied that he had ever met me, he was not speaking on behalf of the United States."

"I am happy that Judge Kaplan recognized these basic truths. As the Judge recognized today, the question whether President Trump raped me twenty years ago in a department store is at 'the heart' of this lawsuit. We can finally return to answering that question, and getting the truth out."

Carroll's lawyer, Roberta Kaplan, said in a statement that, "We are very pleased" by the judge's decision.

"The simple truth is that President Trump defamed our client because she was brave enough to reveal that he had sexually assaulted her, and that brutal, personal attack cannot be attributed to the Office of the President," said the lawyer, who is not related to the judge.

"We look forward to moving forward with E. Jean Carroll's defamation case against Donald Trump in his personal capacity in federal court," the lawyer added.

Carroll had written the "Ask E. Jean" advice column in Elle magazine for 26 years before the magazine fired her in early 2020, in what the magazine said was a business decision unrelated to politics.

She once wrote for "Saturday Night Live," where her work was nominated for an Emmy, and has written a biography about gonzo journalist Hunter S. Thompson, as well as a book that included her claim about Trump, entitled "What Do We Need Men For: A Modest Proposal."

After Carroll first claimed in a New York magazine article published in July 2019 that Trump had raped her in a changing room in the Bergdorf Goodman store on Manhattan's Fifth Avenue, the president issued a statement saying he had "never met this person." Trump also said that Carroll's account was an attempt "to get publicity" and "sell a book." 

Photographs show Trump greeting Carroll at an event some time before the encounter happened.

The writer has said the attack occurred "in the fall of 1995 or the spring of 1996."

At the time, Trump was married to his second wife, Marla Maples.

Judge Kaplan's ruling noted that the United States government cannot be sued for monetary damages because of sovereign immunity, except if the government explicitly agrees to be sued under the terms of the Federal Tort Claims Act.

"The FTCA authorizes damages claims for negligence and certain other civil wrongs committed by government employees within the scope of their employment," the judge noted.

But, he pointed out "the FTCA specifically excepts libel and slander cases from the United States's consent to be sued."

"Thus, if this really is a suit against the United States, it is one to which the United States seemingly has not waived its sovereign immunity," which would mean that Carroll's case might have to be dismissed outright.

The question then becomes whether "Trump is an 'employee of the Government" within the meaning of the FTCA, and if his statements about Ms. Carroll were within "the scope of his employment,"

"The answer to both questions is 'no,' Judge Kaplan wrote.

"While the president possesses all of the executive power of the United States, he is not an 'employee' within the meaning of the FTCA," the judge wrote.

Kaplan said the law's definition of an employee "does not include presidents."

"And even if the president were an employee under that statute, his statements concerning Ms. Carroll were not within the scope of his employment under the law of the relevant jurisdiction, which for reasons explained below is Washington, D.C.," the judge wrote.

Kaplan noted that Trump's "comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States."

The president in recent months has lost several legal battles in New York.

In one case, a federal judge denied his effort to bar Manhattan District Attorney Cyrus Vance Jr. from executing a grand jury subpoena for getting Trump's income tax returns from an accounting firm. Trump plans to ask the Supreme Court to overturn a federal appeals court ruling that upheld the subpoena ruling.

Vance is conducting a criminal investigation of the president's company, the Trump Organization, in connection with how it accounted for hush money payments to two women who have said they had sex with Trump. Vance also might be investigating fraud and tax crimes in connection with how the company has valued real estate assets, court records suggest.

In another case, the Trump Organization lost a bid to delay a deposition of the president's son Eric in an investigation by the New York state attorney general's office into the valuation of Trump-owned properties for tax and other purposes.

Trump has been repeatedly accused of sexual misconduct by multiple women.

He has denied all of their accusations.

But shortly before the 2016 presidential election, a 2005 recording of the show "Access Hollywood," that surfaced revealed Trump bragging about grabbing women's genitals without their consent.