Justice Department effort to step in for Trump in E. Jean Carroll case "nearly 2 years too late," her lawyers say
appeal
of a jury's decision to award her $83.3 million.
It's the second time Mr. Trump has sought the Justice Department's protection in the case, but Carroll's attorneys said his "13th hour" effort "comes nearly two years too late."
Carroll is opposing an effort by the Justice Department, which is a taxpayer-funded agency, and Mr. Trump's personal attorneys, to shield Mr. Trump from damages. The government and Mr. Trump say the Westfall Act, which protects federal workers from lawsuits related to conduct within the scope of their employment, entitles him to absolute immunity from personal lawsuits.
A unanimous federal jury
found in Carroll's
favor in January 2024, concluding that Mr. Trump made defamatory statements when denying that he sexually abused Carroll.
The Justice Department had stepped in on Mr. Trump's behalf during Mr. Trump's first presidency and more than half of former President Joe Biden's term in the White House, but that protection was rescinded after another jury in 2023 found Mr. Trump liable for sexually abusing Carroll, as well as separate defamation allegations. She was awarded $5 million by the jury in that case.
Mr. Trump has denied all of
Carroll's allegations
and appealed both cases.
Carroll's lawyers, led by Roberta Kaplan, said Monday that Mr. Trump missed a court ordered deadline for "a second (or third, or fourth) bite at the apple," referring to Westfall protections.
After the Justice Department reversed course in 2023, the judge presiding over the case gave Mr. Trump a July 13, 2023 deadline to further pursue the Westfall issue. He did not. Carroll's lawyers wrote he instead pursued the "last-ditch claim of presidential immunity," which was rejected — as it relates to this case — later that year.
They argue the plain text of the Westfall Act means the clock ran out when Mr. Trump's civil trial began in January 2024.
The law says that a federal employee who is sued may pursue Westfall certification "at any time before trial," Carroll's lawyers wrote.
"It would be patently unfair to permit a defendant to wait to learn the results of a trial before asserting a defense under the Westfall Act," they wrote.
That conclusion jibes with an analysis by Northwestern School of Law professor James Pfander, who highlighted to CBS News the Westfall Act's use of "before trial."
"The statute would seem to suggest that a motion to substitute at the appellate stage of the litigation comes too late," Pfander said on April 16.
In a book excerpt published in New York magazine in 2019, Carroll accused Mr. Trump of sexually assaulting her in a department store dressing room in the mid-1990s. Mr. Trump denied the allegations and called Carroll a "whack job." He said he had never met Carroll, accused her of "totally lying" and said, "she's not my type." She sued him for defamation later that year.
The Justice Department said in an April 11 filing that Mr. Trump was acting in his official capacity as president when he made the allegedly defamatory statements. The Justice Department and Mr. Trump's lawyers argue the U.S. Court of Appeals for the Second Circuit is required to substitute the United States for Mr. Trump in the case.
Carroll's lawyers noted that the case history includes several findings to the contrary.
"Every decisionmaker to reach the question (with the exception of Trump and the Department of Justice when it has been under his control) has concluded that Trump acted outside the scope of his employment when he denied an accusation of 'personal wrongdoing' concerning a sexual assault that he committed years before he ever ran for office," they wrote.
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