MATT NAHAM – Sep 8th, 2020
The Department of Justice on Tuesday filed a motion (Carroll-Removal.pdf) in state court attempting to substitute itself as a defendant in E. Jean Carroll’s defamation lawsuit against President Donald Trump. The DOJ argued that Trump was “acting within the scope of his office as President of the United States” when he called Carroll’s rape accusation a lie.
The DOJ cited the Westfall Act as its legal authority, particularly 28 U.S.C. § 2679(d)(2):
Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.
This is a significant attempt at countering Carroll’s lawsuit. The plaintiff and her attorneys have argued that Trump was not entitled to special treatment given the Supreme Court’s landmark decision in Trump v. Vance. That high court held that the president was not absolutely immune to the state criminal process. The state judge presiding over the Carroll-Trump matter found that the Supreme Court decision was applicable to the state civil case. The judge declined to issue a stay, ruling that the case should move forward to discovery. The president had argued that the litigation should remain paused pending the outcome of a similar case filed by former Apprentice contestant Summer Zervos.
Not long after the ruling, Trump was given deadlines to produce his DNA. Carroll is a former Elle columnist who alleged that Trump sexually assaulted her in the 1990s in the dressing room of a Bergdorf Goodman department store.
Carroll has claimed that the “Donna Karan coat-dress” she was wearing at the time of the alleged rape has been hanging on the back of her closet door and remained “unworn and unlaundered since that evening.” Carroll and her lawyers have requested a DNA swab so that Trump’s DNA can be compared to sample of unidentified male DNA found on the dress. In February, Trump responded to demands that he provide a DNA sample in Carroll’s defamation lawsuit by claiming that her requests were “burdensome.”
Now the DOJ is citing a statute to remove the case from state court to a federal court in the district. Presumably, DOJ would then reassert the immunity argument that the state court rejected.
Law&Crime reached out to Carroll’s lawyer Roberta Kaplan for comment. She said that timing of the DOJ’s intervention was telling.
“Almost exactly one month ago today, a New York state court rejected Donald Trump’s argument that he is immune from a private lawsuit concerning defamatory statements he made about a sexual assault he committed in the 1990s. As a result of that decision, Trump was soon going to be required to produce documents, provide a DNA sample, and sit for a deposition,” Kaplan said. “Realizing that there was no valid basis to appeal that decision in the New York courts, on the very day that he would have been required to appeal, Trump instead enlisted the U.S. Department of Justice to replace his private lawyers and argue that when he lied about sexually assaulting our client, explaining that she ‘wasn’t his type,’ he was acting in his official capacity as President of the United States.”
Kaplan said that the DOJ argument was “shocking.”
“It offends me as a lawyer, and offends me even more as a citizen. Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent, and shows even more starkly how far he is willing to go to prevent the truth from coming out,” she said.
Carroll also responded to the DOJ move, claiming that it is proof that the president has something to hide.
“President Trump knows that I told the truth when I said that he had sexually assaulted me in a dressing room at Bergdorf Goodman. He also knows that he was lying when he said that he had never met me before and that I ‘wasn’t his type,’” Carroll said in a statement to Law&Crime. “Today’s actions demonstrate that Trump will do everything possible, including using the full powers of the federal government, to block discovery from going forward in my case before the upcoming election to try to prevent a jury from ever deciding which one of us is lying. But Trump underestimates me, and he also has underestimated the American people.”
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