Trump must remain defendant in rape defamation claim case filed by E. Jean Carroll, judge rules in rejecting DOJ bid

  • A federal judgeruled that President Donald Trump must remain a defendant in a lawsuit where he is accused of defaming the writer E. Jean Carroll after she said he raped her in the mid-1990s.
  • Judge Lewis Kaplan rejected arguments by the Department of Justice that Trump was acting in his capacity as a government employee when he said Carroll was lying and motivated by money.
  • The ruling, which comes a week before Trump faces Democratic presidential nominee Joe Biden on Election Day, is the latest in a series of court defeats in New York by the president.

A federal judge on Tuesday ruled that President Donald Trump must remain a defendant in a lawsuit where he is accused of defaming the writer E. Jean Carroll after she said he raped her in the mid-1990s.

Judge Lewis Kaplan rejected the Department of Justice's effort to have the U.S. government replace Trump in the lawsuit.

The DOJ had claimed that the president was acting as a government employee when he said Carroll was lying and motivated by moneywith her allegation that he attacked her in a New York department store dressing room.

Because of that, the DOJ had argued, the government should be the defendant in Carroll's civil lawsuit, not the president.

Kaplan flatly denied that argument.

"The President of the United States is not an employee of the Government within the meaning of the relevant statutes," Kaplan wrote in a 59-page ruling released in U.S. District Court in Manhattan.

"Even if he were such an employee, President Trump's allegedly defamatory statements concerning Ms. Carroll would not have been within the scope of his employment. Accordingly, the motion to substitute the United States in place of President Trump is denied."

The ruling came days after a bizarre aborted court hearing in which a DOJ lawyer refused to orally argue the claim on the telephone on the heels of being denied entry into the courthouse because of New York coronavirus restrictions.

The DOJ could appeal the ruling, which comes a week before Election Day, but if it stands the department will be barred from defending Trump in the case, in addition to being denied its request that he be substituted as the defendant.

Trump is battling former Vice President Joe Biden, the Democratic nominee, for a second term in the White House.

If the DOJ had succeeded in having Trump replaced as the defendant in the case, the government —and hence U.S. taxpayers — would have been liable for any money damages to Carroll if the writer had proved her defamation claim.

Carroll, in a statement, said, "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."

Carroll's lawyer, Roberta Kaplan, said in a statement that, "We are very pleased" by the judge's decision.

"The simple truth is that President Trump defamed our client because she was brave enough to reveal that he had sexually assaulted her, and that brutal, personal attack cannot be attributed to the Office of the President," said the lawyer, who is not related to the judge.

"We look forward to moving forward with E. Jean Carroll's defamation case against Donald Trump in his personal capacity in federal court," Kaplan said.

Carroll had written the "Ask E. Jean" advice column in Elle magazine for 26 years before the magazine fired her in early 2020, in what the magazine said was a business decision unrelated to politics. She once wrote for "Saturday Night Live," where her work was nominated for an Emmy, and has penned a biography about gonzo journalist Hunter S. Thompson, as well as a book that included her claim about Trump, entitled "What Do We Need Men For: A Modest Proposal."

After Carroll first claimed in a New York magazine article published in July 2019 that Trump had raped her in a changing room in the Bergdorf Goodman store, the president issued a statement saying he had "never met this person." Trump also said that Carroll's account was an attempt "to get publicity" and "sell a book." 

Photographs show Trump greeting Carroll at an event some time before the encounter happened.

The writer has said the alleged attack occurred "in the fall of 1995 or the spring of 1996."

At the time, Trump was married to his second wife, Marla Maples.

Kaplan's ruling noted that the United States government cannot be sued for money damages because of a concept known as sovereign immunity, except if the government explicitly agrees to be sued under the terms of a law known as the the Federal Tort Claims Act.

"The FTCA authorizes damages claims for negligence and certain other civil wrongs committed by government employees within the scope of their employment," Kaplan noted.

But, the judge pointed out "the FTCA specifically excepts libel and slander cases from the United States's consent to be sued."

"Thus, if this really is a suit against the United States, it is one to which the United States seemingly has not waived its sovereign immunity," which would mean that Carroll's case might have to be dismissed outright.

The question then becomes whether "Trump is an 'employee of the Government" within the meaning of the FTCA, and if his statements about Ms. Carroll were within "the scope of his employment,"

"The answer to both questions is 'no,'Kaplan wrote.

"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 judge wrote.

Kaplan said that the law's definition of an employee "does not include presidents."

"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.," the judge wrote.

The president in recent months has lost several legal battles in New York.

In one case, a federal judge denied his effort to bar Manhattan District Attorney Cyrus Vance Jr. from executing a grand jury subpoena for getting Trump's income tax returns from an accounting firm. Trump plans to ask the Supreme Court to overturn a federal appeals court ruling that upheld the subpoena ruling.

Vance is conducting a criminal investigation of the president's company, the Trump Organization, in connection with how the firm accounted for hush money payments to two women who have said they had sex with Trump. Vance also might be investigating fraud and tax crimes in connection with how the company has valued real estate assets, court records suggest.

In another case, the Trump Organization lost a bid to delay a deposition of the president's son, Eric Trump, in an investigation being conducted by the New York state attorney general's office into the valuation of Trump-owned properties for tax and other purposes.

Trump has been repeatedly accused of sexual misconduct by multiple women.

He has denied all of their accusations.

But shortly before the 2016 presidential election, a 2005 recording of the show "Access Hollywood," that surfaced revealed Trump bragging about grabbing women without their prior consent

"I'm automatically attracted to beautiful women — I just start kissing them, it's like a magnet. Just kiss. I don't even wait. And when you're a star, they let you do it. You can do anything," Trump said on the recording.

"Grab 'em by the pussy."

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