The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[1.] In 2019, magazine columnist E. Jean Carroll wrote a memoir in which she accused President Trump of having sexually assaulted her in the 1990s. President Trump denied it, and essentially accused her of lying. Carroll sued for libel.
A few days ago, the Justice Department intervened to take over the case, move it to federal court, and substitute the U.S. as a defendant instead of President Trump; and if that succeeds, then the lawsuit will promptly get dismissed, because the U.S. has retained its sovereign immunity against defamation lawsuits. Can they do that?
[2.] Well, it looks like they can, under a little-known statute called the Westfall Act. To illustrate the normal Westfall Act case, we can look at a different libel lawsuit, by the Covington Catholic High School students against Senator Elizabeth Warren and Representative Debra Haaland. Warren and Haaland had called the students' conduct at the now-famous political demonstration a "display of blatant hate, disrespect, and intolerance," and made various other statements about the matter. The students sued, and on Sept. 3 the Sixth Circuit affirmed the dismissal of their case: Under the Westfall Act,
[T]he United States shall be substituted for the employee as a defendant in any common law tort action initiated against an employee if the employee was acting within the scope of employment.
Warren and Haaland were acting within the scope of employment because commenting on "current events" is part of legislators' jobs. And once the U.S. is substituted as a defendant, the case can be dismissed altogether, because "the United States has not waived its [sovereign] immunity to libel suits" (see the Federal Tort Claims Act). Federal government officials, thus, can commit libel on any topic connected with their jobs without the risk of legal liability—this might or might not be a good idea, but that's what the Westfall Act and the Federal Tort Claims Act mean. (Federal law also authorizes such claims to be removed from state court to federal court.)
[3.] Of course, there is one obvious difference between the Trump case and the Warren case: Trump was speaking about personal accusations made against him, while Warren was speaking about other matters. But it turns out courts have rejected this distinction, too; the leading case is Council on American Islamic Relations v. Ballenger, in which
the D.C. Circuit found that a Congressman's comments to the press on his pending separation from his wife were within the scope of his employment because "[a] Member's ability to do his job as a legislator effectively is tied, as in this case, to the Member's relationship with the public and in particular his constituents and colleagues in the Congress." By commenting on his private life, the Congressman was seeking to maintain his constituents' trust in him and thereby discharge his legislative responsibilities more effectively.
That fits President Trump's statements pretty closely: Like Congressman Ballenger, he was speaking about accusations of personal misconduct, and thus "commenting on his private life." But like Ballenger, Trump was trying to "maintain his constituents' trust in him and thereby discharge his [governmental] responsibilities more effectively." And like Ballenger's statements, Trump's statements were made while he was in office. (Trump's statements were made about behavior that happened before he entered office, but that seems irrelevant to the logic of CAIR v. Ballenger—"constituents' trust in [an official]" can be affected as much by allegations of serious pre-officeholding sexual misconduct as by allegations of sexual misconduct while in office.)
Ballenger was speaking about CAIR, itself a political advocacy group. ("Ballenger explained that his wife became increasingly uncomfortable living across the street from the headquarters of [CAIR] after the September 11th attacks. During the course of this explanation, Ballenger stated that CAIR was the 'fund-raising arm for Hezbollah.'") Trump was speaking about Carroll, an individual.
But Carroll had injected herself into public debate with her memoir and the allegations against Trump, I think even more than the Covington boys injected themselves into public debate by participating in a political rally. Ballenger's accusations, even though personally about Trump, were of obvious political significance.
And more broadly, the reasoning in CAIR v. Ballenger didn't turn on the political significance of Ballenger's allegations against CAIR. Rather, it focused on the political significance of the allegations against him (that his separation from his wife stemmed from some personal misbehavior on his part), and the importance to his job of rebutting those allegations. Again, "By commenting on his private life, the Congressman was seeking to maintain his constituents' trust in him and thereby discharge his legislative responsibilities more effectively."
[4.] So it seems to me that the Justice Department's position is likely legally sound here, though I look forward to seeing Carroll's response, which should be filed within several weeks. And the Westfall Act also makes the Justice Department's duty nondiscretionary: "The Attorney General shall defend" any case arising from conduct "within the scope of [a government official's or employee's] office or employment."
Perhaps there is an exception in cases where the defendant doesn't really want the AG's help; for instance, the Justice Department didn't take over the Warren case, possibly because I expect Warren and Haaland didn't trust the DoJ. (Haaland was already being represented by the House of Representatives' own legal staff, and Warren by a lawyer from the prominent law firm Perkins Coie.) But generally speaking the Justice Department doesn't seem to have the power to simply decline to take over the case, so long as the defendant was acting within his "scope of office or employment," an element that seems to be satisfied given CAIR v. Ballenger. So as a legal matter, under existing precedents on the Westfall Act, the Administration seems to be on firm ground here.