Turns out saying a woman is too ugly to assault and calling her a liar is not within the scope of employment of the president of the United States. Even if Donald Trump were an “employee” of the federal government. Which he is not.
Thus held U.S. District Judge Lewis A. Kaplan in the ongoing saga of author E. Jean Carroll, who accused the president of raping her in a Bergdorf Goodman’s dressing room 25 years ago. Trump went beyond denying the allegations, describing her as a serial fabricator and telling reporters on June 24, 2019. “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened.”
Carroll sued for defamation in New York state court, and the president has been bobbing and weaving to avoid discovery for a year now. He tried ducking the process server; he argued the state of New York had no personal jurisdiction over him; he blustered out nonsense about “absolute presidential immunity” to civil process; and when all that failed, Bill Barr swooped in to save the day by asserting that actually the government is the real defendant here under the Federal Tort Claims and Westfall Acts.
And the cool part about that is, since the federal government hasn’t waived sovereign immunity for defamation, the case will magically disappear when it gets recaptioned as Carroll v. United States. Neat, huh?
All the Justice Department had to do was convince a U.S. District judge — since FTCA cases are automatically removed to federal court — that Donald Trump is a government employee acting within the scope of his employment when he says a woman is lying about sexual assault. Which … proved to be a problem.
“While the president possesses all of the executive power of the United States, he is not an ’employee’ within the meaning of the FTCA. The FTCA’s definition of that term does not include presidents,” Judge Kaplan wrote. “And even if the president were an employee under that statute, his statements concerning Ms. Carroll were not within the scope of his employment under the law of the relevant jurisdiction, which for reasons explained below is Washington, D.C.”
After an extensive discussion of the legislative history of the FTCA and Westfall Acts, the court concludes that there is no employer-employee relationship under federal law. And D.C. law is no more helpful to the president’s case.
D.C. courts consider five factors in determining whether a master-servant relationship exists: “(1) the selection and engagement of the servant, (2) the payment of wages, (3) the power to discharge, (4) the power to control the servant’s conduct, (5) and whether the work is part of the regular business of the employer.”
The “decisive” factor, however, is the fourth and most important: control. The president is the chief executive of the United States government. No one, inside or outside of the executive branch, has “the power to control the (president’s) conduct.”
Moreover, the court could not help but notice that respondeat superior doesn’t exactly jive with the administration’s lodestar theory of the omnipotent God King unitary executive. In plain English, if the president has the right to control every branch of government, pardon his friends and demand investigations of his enemies, withhold congressional allocations at will and bust the budget by shouting “It’s an emergency!” and re-routing money to his border wall, then he’s not an employee.
That conclusion is found in the first sentence of the president’s job description. Under Article II of the Constitution, “(t)he executive Power shall be vested in a President of the United States of America.” As Justice Scalia explained in his famous dissent in Morrison v. Olson, “this does not mean some of the executive power, but all of the executive power.”
“The entire ‘executive Power’ belongs to the President alone.”
Not only does the president’s sole possession of the executive power place him atop the chain of command of the executive branch. “Article II confers on the President ‘the general administrative control of those executing the laws.’”
“The buck stops with the President, in Harry Truman’s famous phrase.”
Justice Scalia in Morrison v. Olson? Subtle!
Hey, check out this fun compilation from the Washington Post of Donald Trump bragging that “I have an Article II, where I have to the right to do whatever I want as president.”
And speaking of subtle, in batting away the DOJ’s argument that all personal comments pertain to the president’s fitness for office and are (ipso facto hocus pocus) within the scope of employment, Judge Kaplan cites Clinton v. Jones, where the Supreme Court held that an accuser is entitled to sue the sitting president for defamation regarding a sexual assault that allegedly occurred before he took office.
As of this writing, the government hasn’t yet declared its intention to appeal. But considering the conduct of our esteemed Attorney General in the past two years, let’s just assume that the American taxpayer will be subsidizing Donald Trump’s legal bills in this case for as long as he’s king of the Justice Department.
So let’s give Carroll herself the last word here.
When I spoke out about what Donald Trump did to me in a department store dressing room, I was speaking out against an individual. When Donald Trump called me a liar and denied that he had ever met me, he was not speaking on behalf of the United States. I am happy that Judge Kaplan recognized these basic truths. As the Judge recognized today, the question whether President Trump raped me twenty years ago in a department store is at “the heart” of this lawsuit. We can finally return to answering that question, and getting the truth out.
Time’s (almost) up.
Opinion (E. Jean Carroll v. Donald J. Trump, in his personal capacity, No 1:20-cv-07311-LAK (S.D.N.Y. October 27, 2020))
Elizabeth Dye lives in Baltimore where she writes about law and politics.