The Washington PostDemocracy Dies in Darkness

D.C. court is asked to weigh in on rape claim against Trump

Court is asked to decide if Trump was acting as president when he denied columnist E. Jean Carroll’s claim, which would affect her ability to pursue litigation

E. Jean Carroll in New York in 2020. (Seth Wenig/AP)

A federal appeals court panel on Tuesday asked D.C.’s highest court to decide whether Donald Trump was acting within the scope of his job as president when he denied a rape allegation dating back to the 1990s — a pivotal question that will determine whether the woman can keep pursuing a defamation lawsuit against him.

In a partial victory for Trump, a three-judge panel on the U.S. Court of Appeals for the 2nd Circuit overturned portions of a federal judge’s previous ruling allowing columnist E. Jean Carroll to pursue a defamation case against Trump over his denials of her rape allegation.

But the panel punted on the key question of whether the denials were made as part of Trump’s official duties, asking the local court in the nation’s capital to make that decision. If the D.C. Appeals Court agrees that the denials were part of Trump’s job, that will probably end the litigation, because the U.S. government cannot be targeted by defamation lawsuits.

The case at issue stems from a public back-and-forth between Carroll and Trump when Trump was still president.

Carroll wrote in 2019 that Trump had forced himself on her in a Bergdorf Goodman’s dressing room in New York in late 1995 or early 1996. She is one of many women who have accused the former president of sexual assault. Trump responded to the allegation by saying that Carroll was “totally lying” and “not my type.” He also has denied the other women’s allegations.

Carroll sued Trump for defamation in New York State Court. The case initially proceeded slowly, as Trump argued that he was engaged in free speech, that he couldn’t be sued in New York, that Carroll defamed him and that he had presidential immunity. Then, in September 2020, the Justice Department under Attorney General William P. Barr intervened in the case, writing that Trump was “acting within the scope of his office as President of the United States,” and thus the suit was not against him but against the United States.

The move threatened to short-circuit the entire suit. But a federal judge in 2020 rejected the Justice Department’s position, ruling that the president “is not an ‘employee of the Government’ within the meaning of the relevant statutes” and that “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.”

The Biden administration maintained its predecessor’s position, fighting the case in the appeals court.

The U.S. Court of Appeals for the 2nd Circuit ruled Tuesday that Trump was, in fact, a government employee under the law, breaking with the federal district court judge. But on the question of whether his denial of Carroll’s claims was part of his job as president, the 2nd Circuit decided not to make a decision, asking instead that the D.C. Court of Appeals weigh the question with an eye on local employment law.

“Getting the law of the local jurisdiction right is … of crucial importance, and only the highest local court is capable of making such a determination,” the judges wrote.

Judges on the D.C. Court of Appeals are appointed by the president but decide cases based on local, not federal, law.

Greg Lipper, a criminal and civil lawyer in D.C., said past cases in the D.C. Court of Appeals don’t shed much light on what the court might decide.

“Even though it is strictly speaking a question of D.C. employment law … what’s particularly tricky here is that because he’s the president, the politics and personal reputation are entwined with the job of the presidency,” he said.

The D.C. court does not have to accept the case, and it is unclear what would happen in that instance. But both sides expressed confidence that the court would rule in their favor.

“This decision will protect the ability of all future Presidents to effectively govern without hindrance,” Trump attorney Alina Habba said in a statement.

Roberta Kaplan, who represents Carroll, countered that Trump “was not serving any purpose of the federal government.”

“The comment ‘she’s not my type’ is not something one would expect the President of the United States to say in the course of his duties,” she said.

One of the three judges agreed, writing in dissent that “Carroll’s allegations plausibly paint a picture of a man pursuing a personal vendetta against an accuser, not the United States’ ‘chief constitutional officer.’”

Stephen Vladeck, a professor at the University of Texas Law School who studies federal courts, said the decision to consider Trump a federal employee makes sense “in the abstract,” but the federal appeals court was “not treating the issue holistically.” In other contexts, he said, Trump has argued that he is not bound by the rules that apply to federal employees.

A spokeswoman for the Justice Department did not immediately respond to a request for comment.

Carroll also plans to sue Trump under a recently passed New York law allowing suits in rape cases that took place too long ago for criminal charges, Kaplan said.

Andrea Salcedo contributed to this report.