The Department of Justice has reversed its position on comments Donald Trump made as president about E. Jean Carroll, arguing the former president is not entitled to immunity for the allegedly defamatory remarks.
The DOJ said in a letter sent Tuesday that it no longer thinks Trump’s comments fall under the Westfall Act, under which federal employees are granted immunity from civil suits for conduct occurring under the scope of their employment. Despite having argued in the past that Trump was acting in his official duty when he denied having sexually assaulted Carroll, the DOJ explained it would not renew Westfall certification.
Trump has already been found liable on a separate defamation and battery suit Carroll filed. The writer said the former president forced himself on her in a Bergdorf Goodman in the 1990s. The jury awarded $5 million to Carroll.
In May, the writer asked for further damages after Trump called her a “whack job” in a CNN town hall. However, all the defamatory comments in question were made after Trump left the White House.
While this separate defamation case can still be dismissed by a judge, an easier path has been opened up for Carroll.
Trump made the statements about Carroll at the White House in 2019 in response to inquiries from the press. The former president said the writer was not his type and that she had made up her claims.
The DOJ admitted in its letter that the president “was responding to allegations that could have called into question his fitness to hold the office of the Presidency.”
The Justice Department also explained that retaining constituent trust is an important part of performing effectively as president.
However, these were not sufficient reasons to continue certification, argued the DOJ, having been influenced by the D.C. Circuit Court of Appeals recently clarifying the law.
The Westfall Act requires that the employee be motivated at least in part by a purpose to serve the employer through his or her comments. The D.C. Circuit recently explained it must be the case “that an employee’s partial purpose to serve their employer was more than an insignificant interest” and this can be cognized by weighing the direct and circumstantial evidence.
“Here, although the statements themselves were made in a work context, the allegations that prompted the statements related to a purely personal incident: an alleged sexual assault that occurred decades prior to Mr. Trump’s Presidency. That sexual assault was obviously not job-related,” read the DOJ’s letter.
The DOJ explained there were three pieces of evidences as to why the comments were personal and not employer-related. First, Trump continued making the same comments after he left office. Second, a jury held Trump liable for sexually assaulting Carroll, meaning a prior history was established. Third, Trump’s comments go far beyond a mere denial.
Caroll’s attorney, Roberta Kaplan, celebrated the DOJ’s move in a statement to the Washington Post: “We have always believed that Donald Trump made his defamatory statements about our client in June 2019 out of personal animus, ill will, and spite, and not as President of the United States.”
“Now that one of the last obstacles has been removed, we look forward to trial,” Kaplan explained.