Carroll sued Trump for defamation, saying the derogatory comments hurt her career, and the Justice Department now wants to take over the case. But under the legal theory that the department is advancing, not just the president but all federal officeholders would be free to lie with impunity about private citizens. Carroll’s defamation case would be dismissed because, if Trump’s comments were part of his official duties, the United States would become the defendant, and unlike individuals, governments must consent to being sued. And defamation is not among the offenses for which the United States has agreed to be sued.
The Justice Department stepped in after Trump’s personal lawyers failed to stop the case. After Carroll sued Trump in New York state court, those lawyers argued that Trump could not be sued — period — while president. The state court correctly rejected that argument, and so the case was about to proceed to the next stage, which might have involved DNA tests and deposing Trump as a witness.
In positing that Carroll’s defamation case must proceed against the United States, rather than Donald Trump — and that it should be moved to federal court — the Justice Department cites the Federal Tort Claims Act. That law says the United States is the proper defendant in a suit in which a federal employee has committed a tort — a civil legal violation — in the course of their employment.
That argument rests on several dubious assertions. For one, it is not clear that the Federal Tort Claims Act, which applies only to an “employee of the government,” applies to the president. The act defines employees as “officers or employees” of a federal agency, “persons acting on behalf of” an agency, or “members of the military.” The president is not a member of the military, and he is the leader of the executive branch, to whom officers and employees of federal agencies report.
The law is typically invoked when a federal official unintentionally hurts someone on the job, as when a postal worker accidentally hits someone while driving, or a park ranger fails to warn a camper about dangerous terrain. In such cases, if the employee is found to be negligent, the government is held liable and pays the damages.
A few cases concern statements outside the workplace — for instance, comments about political advocacy organizations. In the episode that led to the 1998 case Operation Rescue National v. United States, for example, Sen. Edward Kennedy (D-Mass.) made derogatory comments about a group that aggressively protested outside abortion clinics. Speaking to a crowd after a fundraiser, he said groups including Operation Rescue had a “national policy [of] firebombing and even murder.” The U.S. Court of Appeals for the 1st Circuit dismissed the case under the Federal Tort Claims Act. In Council on Islamic Relations v. Ballenger (2006), Rep. Cass Ballenger (R-N.C.) had told a reporter that his ex-wife had been uncomfortable living across the street from the organization, which he described as the “fundraising arm for Hezbollah.” The U.S. Court of Appeals for the D.C. Circuit dismissed the case.
Courts have also dismissed defamation suits under the act when the public official’s statements concerned alleged war crimes, federal lobbyists or national protests. In Wuterich v. Murtha (2009), the Court of Appeals for the D.C. Circuit dismissed a defamation suit against a congressman who had spoken about several Marines’ involvement in the killings of civilians in Iraq in 2005. Most recently, in Does 1-10 v. Haaland the U.S. Court of Appeals for the 6th Circuit dismissed a defamation suit against two members of Congress who had criticized students from a Catholic high school who, in 2019, were involved in an ambiguous standoff with a Native American activist during a demonstration in D.C.; video of that incident went viral.
Those cases are all far afield from the Carroll suit, which concerns comments Trump made about his alleged involvement as a private citizen in an incident well over a decade before he assumed office. And Carroll, of course, was a private citizen in the mid-1990s and remains one today. Under the government’s new reading of the torts act, a mid-level bureaucrat involved in a private lawsuit could spread lies about the opposing party — and that person would be acting within the scope of his duties.
It’s hard to believe that a judge would take seriously the idea that Trump’s official duties include defaming women. But even if a court ultimately rejects the department’s argument, the move could help Trump. Government lawyers will have successfully delayed evidence collection in the case until well after the election.
This is merely the latest example of Trump’s leveraging of the powers of the presidency to avoid legal accountability. Over the past four years, he has deployed the Justice Department to try to stop a New York grand jury from conducting a criminal investigation into the president’s businesses; Congress from investigating his financial entanglements; and several litigants from requiring the president to divest his financial stake in hotels and businesses that create conflicts of interest — investments that may even violate the Constitution. Now, Trump is using a federal agency to try to ensure that he faces no consequences for — if Carroll’s account is true — lying about an incident that she describes as rape.
The legal theory that the Justice Department is pursuing now is also at odds with another theory that the department has advanced to help the president avoid accountability, in a case involving whether Trump can block critics on Twitter. In that instance, the department has argued that the president can block people on the social media site because his Twitter feed amounts to purely private speech, not official actions. That’s a bold claim — made bolder when the department insists that Trump’s comments about a private citizen, about an episode from the 1990s, constitute actions within the scope of his duties as president.
The goal is the same, though the methods vary: Protect Trump at all costs. It’s one thing for lawyers in private practice to pursue contradictory and outlandish tactics like these. It’s quite another for the Justice Department to do so, at taxpayers’ expense.