It’s worth quoting Kaplan at length here: “According to the complaint, Mr. Trump, then a private citizen, encountered Ms. Carroll at the Bergdorf Goodman department store in Manhattan some time between the fall of 1995 and the spring of 1996. Ms. Carroll, who was an advice columnist appearing on television, alleges that Mr. Trump recognized her and asked her to help him select a present for a woman who was not with him at the store. The two eventually went to the lingerie department, where, according to the complaint, Mr. Trump insisted that the plaintiff try on a bodysuit. Ms. Carroll alleges next that what she first perceived as playful banter took a dark turn when Mr. Trump closed the door of a dressing room, pushed her against a wall, and began kissing her without her consent. She claims that she pushed Mr. Trump away and laughed at him, and that he then pressed her against the wall once more, pulled down her tights, and forcibly raped her for several minutes until she managed to push him off and flee the store.”
When the account was published, Trump — president at that time, of course — told the media that Carroll had made up the story in order to sell books. Trump said he had never met her.
Carroll, in turn, contended that Trump had falsely accused her of lying. She said that his words injured her reputation, entitling her to damages. Carroll sued him for defamation in a New York State Court.
Thus we had a routine lawsuit between two people in conflict — Trump being defended as a private individual and represented by his personal lawyers — with our sturdy system of civil litigation well equipped to adjudicate the dispute.
Trump’s lawyers tried to say he could not be sued because he was the president. But that was rejected, their request for a stay of further proceedings was denied and pretrial discovery was allowed.
And here’s where it got dicey: The state judge’s ruling raised the possibility of Trump being required to sit for a deposition before the Nov. 3 presidential election.
Another problem involved Carroll’s lawyers’ request that Trump provide a DNA sample to determine whether Trump’s genetic material (shades of Bill Clinton) could be found on a dress (shades of Monica Lewinsky) that Carroll said she was wearing at the time of the alleged incident with Trump.
Did those possibilities serve to concentrate Trump’s mind? We can’t know how things played out behind the scenes, but in September, Attorney General William P. Barr’s Justice Department took the unusual step of intervening in the case.
In federal court filings, the department asserted that Trump’s media statements about Carroll were part of his job as president, and thus the case should be removed from the state court to a federal court, with the U.S. government substituted for Trump as defendant.
That would be Trump’s free pass — provided Judge Kaplan went along.
If Kaplan agreed Trump was a government employee “acting within the scope of his office or employment,” as Justice maintained, it could be argued that Carroll’s case had to be dismissed. The government and government workers enjoy broad “sovereign immunity” protections from lawsuits.
Carroll would be left with no remedy — no day in court — with Trump’s statements about her hanging in the air.
Fortunately, Kaplan decided it “was erroneous” to claim that Trump was acting as a government worker when he accused Carroll of lying, and the motion to substitute the United States in place of Trump was denied. Last week, the Justice Department appealed Kaplan’s ruling to the U.S. Court of Appeals for the 2nd Circuit, where one hopes it will be upheld.
If, however, the case is still pending after Jan. 20, a Biden Justice Department could — should — file a motion to remand Carroll’s case to the District Court with instructions that the case be remanded to state court. Why? Because upon review of the prior government certification, the department would reject the grounds upon which the certification rested and withdraw it.
Then, with the dirty deed undone, citizen Donald Trump may find himself, a la Clinton, providing a DNA sample and sitting for a deposition. Good thing he’ll have plenty of time on his hands.
Read more from Colbert King’s archive.