After undoing the trial judge’s resolution of a question key to the defamation claim, an appellate court kicks the question back to the trial judge without deciding it.
As we related last week, the civil trial of a rape allegation against former president Donald Trump by journalist E. Jean Carroll is scheduled to begin on Monday. The case arose initially as a defamation claim: While Trump was president, Carroll publicly accused him of raping her in the mid-1990s; Trump not only denied the allegation but expressly accused Carroll of lying and berated her appearance. Carroll sued him for defamation in New York State court.
A doctrine of law holds that if the president takes actions during the course of his tenure that are within the broad scope of his duties, he is personally immune from civil tort claims, with the government substituted as the defendant. This is critical in the defamation case because the U.S. government has sovereign immunity and has not consented to be sued for defamation. Ergo, if the government is substituted for the (now former) president as defendant, the defamation claim must be dismissed.
The Justice Department moved to have Carroll’s suit transferred to federal court and to have the government substituted as defendant. The case was thus removed to federal district court in Manhattan (the Southern District of New York). There, Judge Lewis Kaplan denied the government’s motion to be substituted for Trump (a motion the Justice Department has pursued under both the Trump and Biden administrations). Judge Kaplan reasoned that under the 1988 Federal Employees Liability Reform and Tort Compensation Act (better known as the Westfall Act), the president is not an employee of the United States (such that his employer would be responsible for his actions under the venerable respondeat superior doctrine). Alternatively, Judge Kaplan held that even if he were deemed an employee, Trump had not been acting within the scope of his employment when he allegedly defamed Carroll.
Trump and the government appealed. Rather than deciding the questions presented, the Second Circuit appellate court sought guidance from the District of Columbia Court of Appeals, which generally deals with pertinent issues involving federal employment (and which is not to be confused with the more familiar D.C. Circuit federal appellate court).
The Second Circuit certified the following question to the D.C. Court of Appeals:
Under the laws of the District [of Columbia], were the allegedly libelous public statements made, during his term in office, by the President of the United States, denying allegations of misconduct, with regards to events prior to that term of office, within the scope of his employment as President of the United States?
The D.C. Court of Appeals accepted the Second Circuit’s certified question but ultimately declined to provide a definitive answer.
In sum, it decided, first, that it should not opine on “the scope of the President of the United States’ employment”; and second, that the question of whether a president was acting within the scope of his employment when he took some action is not a strict legal question but one to be answered by the fact finder (i.e., by a jury, or by a judge in a nonjury case). On the latter point, the D.C. Court of Appeals concluded that because the question is so “factbound,” it would be inappropriate for the court to address it at this early stage of the Carroll v. Trump proceedings – i.e., the pretrial stage when no factual record has yet been developed.
These nonanswers kicked the case back to the Second Circuit. Today, the Second Circuit kicked it back to Judge Kaplan – the only jurist who has been willing to rule on the question to date, and whose ruling was vacated by the Second Circuit, which then proceeded not to rule. The Circuit instructed Kaplan to conduct “further proceedings consistent with the detailed guidance provided by the D.C. Court of Appeals.” So far as I can determine, that guidance essentially says: maybe the conduct is in the scope of the president’s employment, but maybe it’s not.
I imagine this is exasperating for Kaplan. It would be much more efficient to have a single trial of both the rape and defamation claims. Toward that end, Kaplan decided the question that needed deciding for the defamation claim to proceed to trial, and permitted the rape claim to be added when Carroll filed it pursuant to the extension of the statute of limitations that New York State law permitted last November. The trial of the defamation claim could not go forward, however, because the appellate court undid Kaplan’s ruling then failed to fill the void with a decision of its own – in the end, sending the employment question back for Kaplan to decide it again, presumably on a full factual record of the type that would be developed at a trial. But the Second Circuit waited to do that until the eve of the trial on the rape claim.
You’d have to believe that all concerned would rather have a single trial since trials are very expensive and the relevant facts for the rape and defamation claims overlap significantly. Judge Kaplan has tried to move things along, sticking with his trial date for the rape claim (this Monday) even as the Trump team sought delays after the former president was recently indicted by Manhattan District Attorney Alvin Bragg.
I imagine that the judge will want to move ahead with a trial that now includes both claims, but that at least the Trump side will ask for a delay if the defamation claim is added. Such a request would seem to me unnecessary (given the factual overlap) but not unreasonable (given the need to address facts and law uniquely relevant to defamation). We’ll see what Monday brings.