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Published on October 22, 2020 5:15 AM

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Barr's defense of Trump in E. Jean Carrol's suit could give presidents carte blanche
If President Donald Trump and the Justice Department have their way, presidents will be legally permitted to defame anyone during their four (or eight) years in office.

On Wednesday, a federal judge in Manhattan will hear arguments on the Justice Department's motion to substitute the United States for Trump as the defendant in a defamation suit. The Justice Department filed a reply brief Monday, arguing that Trump's conduct occurred within the scope of his employment because federal elected officials have a "responsibility to communicate regarding matters of concern or interest to their constituents."

The lawsuit was filed by journalist E. Jean Carroll, who alleged in a 2019 book that Trump raped her in the 1990s in the dressing room of a New York department store. Trump denied the allegations, adding that Carroll had falsely accused other men of rape, that she had a political motive, that he had never met her, that she had fabricated the allegations to sell books and that she was "not my type." Carroll claimed that Trump defamed her in 11 specific statements.

The key issue before the judge Wednesday is whether Trump acted within the scope of his federal employment when he made the allegedly slanderous comments. The law permits the Justice Department to remove tort cases from state court to federal court and to substitute the United States as the defendant when a federal employee is sued for acts committed within the scope of his employment. For example, in a case alleging negligence against a national park ranger who was involved in an accident while on duty in his government vehicle, the Justice Department would certify that the employee was acting in the scope of his employment at the time of the accident and would move to substitute the United States as the defendant. If the court were to agree, then the United States would assume any liability, and taxpayers would cover the legal fees and any money damages for the plaintiff.

In this case, the consequences of the decision about scope of employment are huge. That's because the United States enjoys sovereign immunity for defamation claims. Under the Federal Tort Claims Act, the federal government has consented to be sued for certain torts, such as negligence, but not for defamation. That means that if the court agrees that Trump was acting within the scope of his employment and permits the United States to be substituted as the defendant, then Carroll's lawsuit will ...