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Attorneys clash in E. Jean Carroll defamation case against Trump

The D.C. Court of Appeals heard arguments on whether Donald Trump was acting within his job as president when he denied the writer’s rape allegation

President Donald Trump speaks in the James S. Brady Briefing Room Aug. 10, 2020. (Jabin Botsford/The Washington Post)
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The D.C. Court of Appeals on Tuesday heard arguments centering on whether Donald Trump was acting within his job as president when he denied a writer’s allegations that he sexually assaulted her in the mid-1990s — a legal question that is key to whether the writer’s defamation lawsuit against Trump can move forward.

Lawyers for the New York-based writer E. Jean Carroll argued that Trump acted as a private citizen when he denied raping Carroll, and therefore can be sued like anyone else. Trump’s lawyers and an attorney for the Justice Department countered that his responses were made as part of his job as president — which would effectively end Carroll’s case against him because of protection government employees have from defamation suits.

During a 2½-hour hearing, the judges pressed both sides on the boundaries of Trump’s job responsibilities, and some expressed frustration that they had limited information on which to make a decision.

Carroll, a former advice columnist for Elle magazine, described her encounter with Trump in a 2019 book excerpt in New York magazine, alleging Trump raped her in a dressing room at the Manhattan department store Bergdorf Goodman.

In a series of interviews, Trump repeatedly denied the claims. In a 2019 interview with the Hill, he said: “Number one, she’s not my type. Number two, it never happened.” The interview occurred, according to the article, as Trump was seated in the Oval Office. In another interview, Trump suggested Carroll was paid by one of his adversaries to lodge such a complaint against him.

Carroll then filed the defamation lawsuit against Trump.

In court Tuesday, Joshua Matz, one of Carroll’s attorneys, said that Trump “was acting and making these statements on the basis of personal motives” and that his statements “went way beyond — subjectively in his own mind — any desire to serve the interests of the people of the United States or to simply assure people with his fitness for office.”

He told the eight appeals court judges that siding with Trump would give license to public officials to malign private citizens without repercussion. “Anyone who says something critical of a public official,” Matz said, would be “at risk of open season on them with essentially complete impunity.”

Carroll’s position drew support from the D.C. attorney general’s office, which also argued in court that Trump was acting outside the context of his job.

“These statements were made with a personal motive, out of a selfish motive,” argued Caroline Van Zile, the District’s solicitor general with the city’s Office of the Attorney General. She pointed in particular to Trump’s “not my type” remark — saying it suggested “the plaintiff is not only unattractive, but too unattractive to be raped.”

Trump’s lawyers, meanwhile, argued Trump was responding to media inquiries on the grounds of the White House and addressing a matter that might be of broad concern to U.S. citizens, because it involved allegations involving the country’s commander in chief.

“These questions were thrust upon him, and he responded to the press, which was part of his job,” Trump attorney Alina Habba said.

Mark Freeman, an attorney for the Justice Department, echoed that position — though he noted the department did not view Trump’s language “appropriate.” Senior elected officials, Freeman said, have “to be responsive to the media and public.”

“When they do so, they generally act within the scope of their employment,” Freeman said.

The case had originated in New York and followed a circuitous path that led it to the D.C. court. Late in Trump’s presidency, the Justice Department argued that he was acting within the scope of his duties as president when he answered a reporter’s question about the allegations. But a federal judge in New York sided with Carroll, ruling Trump neither qualified as a government “employee” under federal law nor was acting “within the scope of his employment.” The Justice Department then appealed, an effort that continued into the Biden administration.

In September, the U.S. Court of Appeals for the 2nd Circuit in New York overturned portions of the ruling, deciding that Trump counted as an employee of the federal government. But the federal appeals court asked the D.C. court to decide whether his statements were in the scope of his employment.

The judges on the D.C. appeals court on Tuesday expressed some frustration about a lack of evidence that might speak to Trump’s intent.

“We don’t have any facts in this case. We only have the bare complaint. Where does that leave us?” asked Judge Catharine F. Easterly.

Judge Corinne A. Beckwith pressed on whether there was anything Trump might say in response to media questions that would not be a part of his job.

“So, no matter what he says in response to the media, he’s doing so within his employment?” Beckwith asked.

“Yes, that’s his job,” Habba said.

In November, Carroll filed a separate lawsuit in New York against Trump under a new law called the Adults Survivors Act. It gives adult sexual assault survivors up to a year to file a lawsuit, regardless of when the alleged violation happened.

It remains unclear when the D.C. court will issue a ruling, but a trial in the case in New York is scheduled for April.