Libel

Libel Lawsuits Against Federal Government Officials (E.g., Senator Warren or President Trump)

Under the Westfall Act, the Justice Department can generally take over the defense of many such cases—and then get them dismissed.

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[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.

NEXT: Today in Supreme Court History: September 13, 1810

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  1. One does not “inject oneself into public debate” by getting raped.

    1. Nor does one by dialing the number for the police the next morning.
      (This was so long ago that most communities didn’t have 911 yet.)

      But — even if one is telling the truth — if one waits 29 years until he is the POTUS running for re-election and then announces it to the world, one HAS injected one’s self into the public debate.

      1. It was one passage in a 300-page book.

        What Eugene is talking about is what has been called here “Fifth Avenue Immunity”. It doesn’t matter if Carroll said anything at all. Trump can, out of the blue, defame her, she sues him, and by Eugene’s lights Westfall would still apply. Trump could gun down Carroll, and her heirs could bring a wrongful death suit, and Westfall would still apply.

        1. You mean like the FBI gunned down Vikki Weaver as she was breastfeeding an infant?

        2. “[B]y Eugene’s lights.” He is explaining the law, not advocating for the law.

          1. No, he’s misleading us as to the Ballenger case. It wasn’t about the breakup of a Congressman’s marriage. It was about him accusing the Muslim advocacy group across the street of being in league with terrorists. It made him (or his wife) “uncomfortable” with living in D.C., which was why he was leaving Congress. Racist as it was, the statement was (sort of) related to his official duties.

            The Prof wrongly puts the focus on Carroll. The Westfall Act speaks only of the official duties of the official involved. It is not part of Trump’s official duties to defame women. Trump is saying, “When you’re the President, they let you do it.” Grabbing p***y is next.

            1. Well, let’s see what Ballenger focuses on:

              Here, the “underlying dispute or controversy” was the phone call between Ballenger and Funk discussing the marital separation. The appropriate question, then, is whether that telephone conversation — not the allegedly defamatory sentence — was the kind of conduct Ballenger was employed to perform. We hold that it was. Speaking to the press during regular work hours in response to a reporter’s inquiry falls within the scope of a congressman’s “authorized duties.” …

              In his affidavit, Ballenger proffered several reasons for discussing his separation. He wanted to maintain the “continued trust and respect of [his] constituents” in order to preserve his “ability to carry out [his legislative] responsibilities, both in the near-term and in the long-term.” Put another way, Ballenger followed up with Funk to “defuse an issue that could affect [his] representational responsibilities to [his] district and/or inhibit [his] long-term ability to continue advancing [his] legislative agenda in Congress.” We agree with the District Court that Ballenger’s conduct was motivated — at least in part — by a legitimate desire to discharge his duty as a congressman.

              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. In other words, there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively. To that extent, “service in the United States Congress is not a job like any other.”

              Very little there about the accusation focusing on CAIR’s supposed connection to terrorists — and a lot there about the accusation being Ballenger’s way to defend himself against charges of misbehavior in his “personal life.” And this analysis applies pretty much equally to Trump — not because it’s “part of Trump’s official duties to defame women,” but because it’s part of any officeholder’s official duties (in the D.C. Circuit’s view) to try “to ‘defuse an issue that could affect [his] representational responsibilities to [his] [constituents] and/or inhibit [his] long-term ability to continue advancing [his] … agenda ….”

              1. So what exactly was Ballenger seeking immunity from? The only “case or controversy” was the defamation lawsuit and it had nothing to do with his marriage, it had to do with his accusation of terrorist ties.

                1. Ballenger was seeking immunity from defamation.

                  “It is not part of Trump’s official duties to defame women.”

                  While true, if you read Ballenger you’ll see that the issue isn’t framed in terms of the defendant’s tortious conduct. That would be dumb; there would be no Westfall Act at all, because every invocation of immunity by a defendant accompanies an allegation by the plaintiff of actionable conduct. Instead you determine if the alleged tort occurred while the defendant was within his scope of employment. In Ballenger it wasn’t “is defamation within the scope of his employment” but rather “is a phone call with a reporter about his reputation, in which he is alleged to have committed some tort, within the scope of his employment”.

                  1. Ballenger was seeking immunity from defamation.

                    This isn’t exactly right (though it’s not your framing). The Westfall act isn’t about immunity per se. The Westfall Act says that the federal government, rather than the individual government employee, is the proper defendant. However, because the federal government cannot be liable for defamation under the FTCA, immunity is the result.

            2. The Westfall Act speaks only of the official duties of the official involved.M/blockquote>

              No, it doesn’t. In fact, it doesn’t speak of “official duties” at all. Rather, it refers to claims stains officials who were “acting within the scope of [their] office or employment”.

              1. “Acting within the scope of” is the operant phrase. Someone outside the government is not “acting within the scope of official duties”. It doesn’t matter what the private person does; it matters only what the official was doing, which led to the lawsuit.

                1. Remember, even in non-Westfall act settings, “scope of employment” is very broad. E.g., if a Domino’s Pizza deliveryman, totally unbeknownst to his employer, stops after delivering a pizza at his girlfriend’s house to receive some oral sex, and hits a pedestrian on the way back from his girlfriend’s house to the pizza parlor, that’s generally going to be ruled to be within the scope of his employment. It’s a broad concept.

                  And given the legislative intention of the Westfall Act, it’s a really broad concept in that context. I ran into it once when litigating a torture and abduction case; the courts ruled we couldn’t sue any of the government officials involved in it; the US got substituted for everyone. Torture and abduction was in the scope of everyone’s employment. Broad statute.

      2. Nor does one by dialing the number for the police the next morning.
        (This was so long ago that most communities didn’t have 911 yet.)

        Seriously, why do you just so matter of factly make up shit? It wasn’t anything of the kind.

        1. Ha, I completely skimmed over this one. Is Dr. Ed actually dumb enough that he thinks people would believe that n 1995, “most communities” didn’t have 911 centers, much less that New York City was one of them?

          1. In 1991, most municipalities in Massachusetts didn’t have them.
            In 1991, most municipalities in Maine didn’t have them.
            In fact, it took both naming roads and assigning house numbers before 911 could even exist — and this was a major hassle in the early/mid 1990s.

            And as to NYC, lawyers like to say “assumes facts not in evidence.”

            But can you concede that 1991 was two years before the WWW was invented? Or “a long time ago?

            1. Why are you talking about Massachusetts or Maine in 1991? The allegation here is about something that happened in New York City in 1995 or 1996.

              1. Because I don’t like being falsely accused of making stuff up, and I was sure about the facts I stated.

                Can you agree that 1995 was a long time ago?

                1. Can you agree that 1995 was a long time ago?

                  No. But that surely depends on context. 25 years is a long time if the issue is forgetting to return a library book for that length of time; it is not a long time if the issue is continental drift. Either way, though, it’s subjective and not the issue here.

                  What’s not subjective is the claim that it was “so long ago that most communities did not have 911 yet.” That’s a factual assertion, and it’s a complete lie. In 1995, the vast majority of the country had 911. Here’s one result from a quick google:

                  https://www.nena.org/page/911overviewfacts

                  By 1987, those figures had grown to indicate that 50% of the US population had access to 9-1-1 emergency service numbers.

                  […]

                  At the end of the 20th century, nearly 93% of the population of the United States was covered by some type of 9-1-1 service. Ninety-five percent of that coverage was Enhanced 9-1-1. Approximately 96% of the geographic US is covered by some type of 9-1-1.

                  (And of course, since the topic was NYC, it would all be irrelevant anyway.)

            2. “But can you concede that 1991 was two years before the WWW was invented?”

              Not if one believes in objective reality.

              1. I place the birthdate of the World Wide Web as April 30, 1993 because that is when CERN put it into the public domain. Please see the document that said they were doing it: https://cds.cern.ch/record/1164399?ln=en#

                (NB: Please note the .ch in their domain, the European Organization for Nuclear Research (CERN) is located Meyrin, Canton of Geneva, Switzerland)

            3. 911 was first implemented in New York City in July of 1968.

    2. captcrisis: Of course not — but one does inject oneself into public debate by writing a memoir in which one accuses the President of a serious crime. This doesn’t of course mean that there’s anything wrong with writing such a memoir (if the accusations are correct); it’s just that it makes it hard to distinguish libels against the memoirist from libels against a teenager at a political rally, or even libels against a political organization.

      (As I mentioned, whether the plaintiff injected herself into public debate may not matter at all, given the rationale of CAIR v. Ballenger; I raised the inject-into-public-debate question only to respond to a possible limitation on the doctrine that some might want to impose.)

      1. What if the rape was last year and she brings charges? He would say the same thing and Westfall would still apply.

        1. Correct me if I am wrong, but I do not believe Westfall is a defense to a criminal charge.

          Now there is the question of if you can indict a sitting President, but that is a different question.

          1. Correct me if I am wrong, but I do not believe Westfall is a defense to a criminal charge.”

            No, but being President is.

        2. The Westfall Act does not cover rape. Nor your murder example.

          How can rape be within the scope of a president’s duties? Think like a lawyer for a change, not a rabid Trump hater.

          1. What I meant was, what if she brings charges, he calls her a liar, and she sued for defamation? Westfall would still apply.

            1. Wouldn’t “rape” constitute a “high crime” — I suspect that Nancy Pelosi would think it did….

              1. “Wouldn’t ‘rape’ constitute a ‘high crime’ — I suspect that Nancy Pelosi would think it did….”

                but Senate Republicans would not. and there’s more than 51 of them.

                1. Just because the Democrats tolerated one President credibly accused of rape (Juanita Broaddrick) and have now nominated another does NOT mean that the Republicans would.

                  1. Weird post. You do know that Republicans nominated Trump, and not Democrats. Right?!?

                    1. He apparently also doesn’t know that Juanita Broaddrick has stated repeatedly under oath that no rape occurred.

            2. She would just sue for rape, its a tort as well as a crime.

              The reason she issuing for libel is that the alleged rape is outside the civil statute of limitations.

              1. No, the reason she’s suing for libel is to get this into the press.

                1. No, the reason she’s suing for libel is because she was libelled.

        3. I agree that this precedent cited would suggest that it will virtually never be possible for a person to sue the president for denying an allegation of misconduct.

          I’m not sure that’s so obviously absurd as to suggest that the precedent is wrong.

          1. Look, I am not a lawyer but I am a scholar and I believe the principle was that “the king can do no wrong.” But — unlike in England — if he does, you can impeach/convict him, and THEN, as he is no longer king, you can prosecute him.

            Now one needs to remember that the founding fathers presumed that folk like Pelosi and Schumer would suffer the fate of the roundheads if they ever tried a stunt like they did, and that impeachment wasn’t supposed to be political.

            1. “Look, I am not a lawyer but I am a scholar”

              Not a very good one, however.

              ” impeachment wasn’t supposed to be political.”

              A scholar would know that impeachment is, and has always been, 100% political. Just refer to the previous Presidential impeachments if you still doubt this.

              1. The Constitution was written in 1787 — and it was 81 years before the first Presidential impeachment, 130 years until the next one, but only 21 years to the third one — and from hereon in, every President should plan to be impeached.

                However, what was the consensus after the 1804 impeachment of Samuel Chase on what was clearly political grounds….

      2. I am concerned that “injecting oneself into the public debate” may somehow imply raising the bar in Libel and Slander cases. The Covington students, were thrust into the public debate simply by virtue of their hats. More significantly, the immunity granted to public agents by ruling; “while acting in the course and scope of their public duty to inform constituents and the public at large of matters being considered by congress” has, inadvertently, I believe created a neat jurisprudential test here to consider if soveriegn immunity applies. Q: “Was the particular issue raised by Nathan Phillips and the Black Hebrews a matter of discussion or at issue before congress when the event occurred?” If not, then the commentary falls outside of the scope of sovereign immunity. As a secondary corollary, whether given within or without the scope of ‘public duty’ the objective veracity of the statement should be clear and convincing to all recipients, otherwise it should be actionable under the statutes and common tort law. Subject to the Constitutional protections for the three branches of course.

        1. “The Covington students, were thrust into the public debate simply by virtue of their hats.”

          The hats they chose to wear in public. You choose to say that America isn’t Great, you ought to expect some pushback. What got them any traction in public debate was how goofy that one kid looked in a still image. Without that, nobody would know or care who the hell they are.

    3. But you do by springing rape accusations to influence political processes. Regardless of the veracity of the accusation or not this accusation and many others are objectively being used as political tools.

      A prominent male politician being accused of rape is so common nowadays it might as well be a rite of passage. Its as much a part of the electoral process as the ballot box and American Flag stickers.

      Rape accusations have never been sacred cows. And people on both sides have always recognized this. Democrats have always treated accusers of their candidates with disdain. So don’t go pulling the #BelieveAllWomyn nonsense here.

      1. Regardless of the veracity of the accusation or not this accusation and many others are objectively being used as political tools.

        Pretty much any accusation against a politician is going to be used as a political tool.

        Should we ignore them all?

        Besides, this is not about “#BelieveAllWomyn.” It’s about #BelievetheDNA.”

        1. The problem with #BelievetheDNA is that consensual sex also produces DNA.

          I can’t give the details (that little FERPA thing) but I’ve had student judicial cases where past consensual sexual acts became retroactively defined as “rape” when the woman discovered that she was a lesbian.

          Jane Roe later decided she was glad that she couldn’t have an abortion. A lot can happen in 29 years — heck, Bush ’41 was still President then.

          1. But Trump doesn’t claim it was a consensual act. He claims the encounter never happened.

          2. Jane Roe also later recanted her recantation.

          3. I can’t give the details

            We’ll happily wait until you finish making them up.

            1. If you really are a lawyer, then you’re an “officer of the court” and subject to disbarment for encouraging the violation of Federal law,

              Just sayin….

              1. “Just sayin”

                You do that a lot, when you don’t know what you’re talking about.

        2. Nobody is ignoring it. captcrisis is acting like rape accusations should be something sacred treated with a reverence (to the accusers benefit) above all the other mudslinging when nobody including Progs has ever done so regardless of their rhetoric.

    4. “One does not “inject oneself into public debate” by getting raped.”

      Presenting your accusation almost three decades later in the middle of an election does though.

  2. Has there ever been a constitutional challenge to the Westfal Act?

    I’m thinking the “nor be deprived of life, liberty, or property, without due process of law” clause of the 5th Amendment, and one’s reputation being property.

    Of course, this is the same issue as the privileged immunity and police officers.

    1. “Has there ever been a constitutional challenge to the Westfal Act?” Any such challenge would fall under the sovereign immunity doctrine. The doctrine essentially states that governments are inherently immune from lawsuits except to the extent that those governments consent to being sued.

    2. On what grounds? There is no constitutional right to bring a libel suit. If there were any such grounds then Sullivan would have been wrongly decided.

      1. ” There is no constitutional right to bring a libel suit.”

        Unless a libel suit is a petition for redress of grievances.

        1. There’s no interference with the petition clause. The plaintiff is free to petition Congress to repeal the Westfall Act. Or to pass an act providing compensation in this particular case. Congress sometimes does that. But the petition clause doesn’t mean anyone in government ever has to grant any petition. And this means it doesn’t guarantee anyone a right to win in court.

  3. Trump was trying to “maintain his constituents’ trust in him and thereby discharge his [governmental] responsibilities more effectively.”

    The easy way for Trump to do that would be to submit a DNA sample for comparison. Then, when it fails to match – as Trump claims it would – everyone would know he was innocent of Carroll’s charges.

    1. But if the President thought the DNA test would implicate him, the only way for him to “maintain his constituents’ trust in him” would be to say that the alleged victim is lying.

      1. Given the gullibility of his supporters, you have a point.

    2. Against a 29-year-old rape kit? Ummmmm….
      And who gets to do the comparing in the ultimate political case?

      Of course Trump could say “I’ll do it if the Left raises $100M to rebuild the small businesses destroyed by the Bitchy Little Marxists. Then profile a few of the Black business owners who lost everything.

      Checkmate.

      1. Its not a “rape kit”, its male DNA on a dress, the sleeve I think but not sure.

        1. He sneezed on her….

          1. with his penis. Did he not pay this one off?

      2. You’re lousy at chess too.

      3. If the question is whether to believe Donald Trump, or some random other person, I’d bet that the random other person is telling the truth. I don’t happen to have a spare $100M to invest right now, but there’s people who do. I bet some of them fall under the “the Left” umbrella.

        “checkmate” indeed.

    3. Mere DNA on a dress is hardly strong proof of her rape charge. Undisputed that they knew each other, many innocent ways for DNA to be on it.

      Monica had semen on her dress. That is conclusive evidence of “something” sexual, semen doesn’t just casually get on a dress.

      1. Is it even possible to distinguish semen-DNA from other (non-blood) DNAs such as coughs and sneezes?

        1. IDK. It was dried semen so not an issue with Monica.

        2. “Semen” doesn’t contain DNA. Sperm does, and can sometimes be distinguished from other genetic material, depending on how well-preserved the sample in question is.

          1. I’d have thought it would be hard to leave semen but not sperm, but then I have never tried…

            1. Get a vasectomy, the whole point of which is to have semen with no sperm in it.

      2. Trump could gun down Carroll, and her heirs could bring a wrongful death suit, and Westfall would still apply

        Undisputed, that is, except by Pres. Trump.

        1. He says he could gun someone down right on 5th Avenue.

  4. Anyone remember when Joe Biden was accused of a sexual assault scenario that was backed up with more facts? Yeah I sort of forgot about that too. It is like the media “cancelled” that because it was inconvenient for him to have to answer questions about it…

    1. Yep. The magic (D) always works.

    2. The only reason this one is in the news at the moment is because of Trump and the DOJ; it’s not like there was any media coverage leading up to the DOJ taking over the case.

  5. Trying to leave Trump aside, a denial is hardly libel, its just a denial.

    IMHO, once conduct is outside a statute of limitations, use of an accusation to provoke a denial, then using a defamation claim to litigate the original conduct is wrong and short sighted.

    1. Agreed. Posters should not lose sight of the fact that she is far past the statute of limitations on the rape — her book came out some 30 years later. She just published a book.

      And I agree, I am having a hard time seeing how a mere denial constitutes defamation.

    2. If we set aside that this is the President and the Westfall Act, could you elaborate why “once conduct is outside a statute of limitations, use of an accusation to provoke a denial, then using a defamation claim to litigate the original conduct is wrong and short sighted”? If the statute of limitations has run, but there’s evidence of the rape, why wouldn’t it be a good idea to draw the perp out with a defamation claim? And what’s “short sighted” about it?

      1. Shortsighted isn’t the word I’d choose, but I do think that (speaking generally) our legal system should not encourage this scenario. You should not be able to sue for defamation because a person denies an allegation you made against him.

        A: “You’re a rapist.”
        B: “No, I’m not.”
        A: “That’s calling me a liar, so it’s defamatory!”

        Now, I realize that in this particular instance, Trump said more than “No, I’m not,” which is why I said “speaking generally.” But we’ve seen this pattern too frequently in recent years.

        1. This is what I was getting at.

          1. I think I agree that merely denying a claim is insufficient for defamation. I think it gets closer when you say “That person is lying and only to increase book sales” or “that person is lying and only because they are in cahoots with the Democratic Party”, or “She’s accused other men of rape falsely before, too”.

            1. Only the last one is arguably defamation. The other two are just opinions.

        2. Proving damages is one of the elements of a defamation claim.

      2. “short sighted”

        The valid reasons that statute of limitations exist are ignored so we can “draw the perp out”.

        1. If we agree that something more than “She is lying” is needed for defamation, when we say “draw the perp out” we don’t mean through just denial. We mean that person is going to say something else defamatory. What’s the reason not to want that defamation claim to move forward, if we assume something more (by way of defamation) than a denial?

    3. Yes, several of Trump’s statements were denials – that he raped her, that he had met her – and one or two were just insults, or speculation about her motives that would be unlikely to be taken for an assertion of fact.

      All of which makes me wonder if invoking the Westfall Act was politically wise, risking breathing new life into something that likely would have quietly died on the merits.

      1. “one or two were just insults, or speculation about her motives that would be unlikely to be taken for an assertion of fact.”

        If Trump said them, it’s unlikely that they would be taken for an assertion of fact.

      2. I think it was only done after the state court ordered Trump to provide a DNA sample and be deposed.

        If the DNA matched it wouldn’t have died quietly no matter what.

    4. I have suspicion a simple denial would not be libelous on the merits, if they were reached.

  6. Couple points re: Ballenger.

    1) It matters where the President is alleged to have committed the actionable conduct, since under the Westfall Act courts look to the respondeat superior law in the state where the tort occurred. I don’t know if that’s still current law, but that’s what the Ballenger court said. I doubt this changes the outcome in this case since the law of respondeat superior is steady across many jurisdictions, so far as I can tell at least.

    2) Does it matter when and where the President committed the tortious act? Ballenger framed the issue as whether a congressman acted within the scope of his employment “when he discussed his marital status in his office, during regular business hours, in response to a reporter’s inquiries.” They seemed to rely on this fact in the per curiam opinion as well (“Speaking to the press during regular work hours in response to a reporter’s inquiry falls within the scope of a congressman’s ‘authorized duties.'”). I doubt this is a requirement and it isn’t apparent (from the opinion) that it was. But the when/how/why factors into the court’s analysis. If a Congressman, on vacation, is at a diner and someone says “You suck at legislation!” and the Congressman commits an unwaived tort in response, it’s not obvious to me that Ballenger decides the case in favor of the Congressman. And in response to a slippery slope, the court notes that the holding “cannot be divorced from its facts”, specifically that the case involved “a statement by a congressman to the press.”

    3) I think even if the holding does rely on the working hours, formality of communication with press, etc., the President still wins. The job has no working hours. Every communication he makes to the public (during his presidency) is arguably part of the job. Even if reasonable minds disagree about that, courts shouldn’t be adjudicating when the President’s job starts and stops.

    1. “Fifth Avenue Immunity”.

    2. 3) I think even if the holding does rely on the working hours, formality of communication with press, etc., the President still wins. The job has no working hours. Every communication he makes to the public (during his presidency) is arguably part of the job. Even if reasonable minds disagree about that, courts shouldn’t be adjudicating when the President’s job starts and stops.

      I agree that the president’s job (and that of other elected officials) doesn’t start and stop in a temporal or geographic sense.

      But that doesn’t change the fact that Ballenger is just wrong. It’s not binding precedent outside of the DC Circuit, of course, and the Second Circuit should simply reject it. The notion that preserving an officeholder’s personal reputation is part of his job because in theory it can make him more effective as a legislator falls somewhere between sophistry and bullshit. (It’s not surprising that a court sitting in DC would be extremely solicitous of politicians.) The Ballenger court tries to generalize the topic to “responding to the media” — while then unconvincingly denying with boilerplate comments about fact-specificness that it is immunizing politicians for talking to the media. But, no, a member of Congress is not serving the interests of the U.S. government (or the American public, his actual employer) by trying to help himself get reelected.

      1. I agree that Ballenger seems like a bad decision.

        Office-holders should not be allowed to make defamatory statements to enhance their effectiveness or whatever.

        Even if such statements did help, they shouldn’t be encouraged since, as I understand it, they are by definition false and harmful to someone else.

        1. All you have to do is convince a majority of Congress to vote to amend the tort claims Act, and then have whoever happens to be President at the time sign it. I wouldn’t count on the current Prevaricator-in-Chief signing a bill that would take away his shield from liability for lying about people, though.

          1. Convince a majority of elected politicians to vote to eliminate their liability? Yeah, that certainly seems likely.

            1. It shouldn’t be that hard to get them to vote to eliminate their liability. And afternoon’s work, perhaps. Now, getting them to vote to re-impose liability, that’s a tough one.

            2. Yes, yes, I meant eliminate their immunity from liability, not their liability.

    3. This is a very substantive argument. Ballinger is a DC court of appeals decision, and other circuits may not buy it.

      But I think Professor Volokh’s main point is that President Trump’s position has plausible legal merit and is not nearly as rediculous or an abuse of taxpayers’ money as his opponents claim. It’s based on a solid circuit precedent, and the same argument has been used by others including Elizabeth Warren.

      It’s possible that other circuits or the Supreme won’t agree with the DC circuit and won’t accept the argument. But that hasn’t happened yet. In the meanwhile, even if one disagrees with Ballinger, the fact remains that relying on it represents a plausible and legitimate legal position.

  7. So here is a *bipartisan* abuse where Congress attempts to (a) protect federal employees by switching defendants from the employee to the U. S. and (b) then has the case thrown out because the U. S. hasn’t consented to be sued.

    And to add insult to injury, this protection even applies when a President or a Congresscritter is accused of committing defamation, and no matter how tangential the alleged defamation is to the official’s duties, it’s considered just part of their job.

    Where is the 9th Amendment when you need it? Just as a reminder, this amendment refers to rights retained by the people even if they’re not written down specifically in the Constitution.

    Did the people in 1791 have a recognized right to sue those who defamed them? One might think so, since many state constitutions recognized the right to have a legal remedy for any injury to person, property *or reputation.* See, eg.

    https://www.ncsc.org/topics/judicial-officers/judicial-administration/state-links

    for examples of such provisions in the constitutions of then-existing states (Connecticut, Delaware, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Rhode Island).

    So this is at least suggestive evidence that in 1791 there was a recognized right to obtain a legal remedy for damage to one’s character.

    But laws are not for the powerful, there’s always a loophole.

    1. Wouldn’t the 5th Amd apply too?

    2. “Did the people in 1791 have a recognized right to sue those who defamed them?”

      The controlling question would be whether in 1791 individuals in states were free to sue the federal government for anything, absent a waiver of immunity. I think the answer is no, since we inherited sovereign immunity from England.

      For an easier case, even if in 1791 there was a right to sue for defamation, neither state law nor the 9th Amendment would interfere with speech or debate immunity under Art. I, Sec. 6, Clause 1.

      1. “The controlling question would be whether in 1791 individuals in states were free to sue the federal government for anything”

        The plaintiffs here didn’t file suits against the United States, they sued specific alleged wrongdoers, and the feds did a two-step by substituting the U. S. as a defendant, and *then* using sovereign immunity.

        You’d think that if the U. S. doesn’t want to be sued, then the thing to do is not to become a defendant.

        “speech or debate immunity under Art. I, Sec. 6, Clause 1”

        Interesting question, and it demonstrates that when the Constitution’s framers wanted to give personal immunity to public officials, they knew how to do so, and they limited it to saying Congresscritters wouldn’t be held accountable for their speech or debate in any other place *besides Congress.* So the House or Senate can still discipline a member whose speech or debate happens to violate the law or parliamentary rules.

        1. For the government to obtrude into a case and make itself a defendant, and then claim it has sovereign immunity, is like killing your parents and pleading for mercy because you’re an orphan.

        2. Even pre-Westfall Act, you couldn’t get around federal government immunity by suing the employee individually.

          “…and it demonstrates that when the Constitution’s framers wanted to give personal immunity to public officials, they knew how to do so…”

          Not sure this is correct, since speech and debate clause does more than merely provide immunity from liability or suit.

          Could you clarify your position? Do you believe federal sovereign immunity didn’t exist in 1789 and wasn’t contemplated in the Constitution? Or that it was abrogated in 1791 with the 9A?

          For early evidence of sovereign immunity, see:

          1) Federalist 81 (“It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.”).
          2) Although not a primary source, there’s plenty of reference to them in Welch 483 US 468 (1987).
          3) Even if federal sovereign immunity was not presumed, one reason courts grant it is because they have no power to do otherwise. Congress has the power (under Article III) to create immunity by depriving federal courts of jurisdiction. (It can also starve them by removing funding.)

          1. “Do you believe federal sovereign immunity didn’t exist in 1789 and wasn’t contemplated in the Constitution?”

            No.

            The plaintiffs didn’t try to sue the United States.

            The feds played three-card monte. They want to become the defendant even though the plaintiffs didn’t sue them. *Then* they say the plaintiffs can’t sue them!

            “Even pre-Westfall Act, you couldn’t get around federal government immunity by suing the employee individually.”

            Maybe I could get some examples of this?

            1. If the 11th Amendment precedents are any guide, there are all sorts of ways to sue a government official even if the government of which he’s an official has sovereign immunity.

            2. Since one of your questions was a tad confusing, let me rephrase it to make it clear:

              Do I believe federal sovereign immunity existed in 1789 and was contemplated in the Constitution?

              Absolutely.

              Let me ask: Suppose someone sues a President or Congresscritter for defamation. Is this actually a suit against the United States in disguise?

              1. Follow-up – what do the pre-Westfall Act precedents say about that last question?

              2. “Let me ask: Suppose someone sues a President or Congresscritter for defamation. Is this actually a suit against the United States in disguise?”

                Pre-Westfall it depended on whether the federal employee was acting within the scope of their employment and the thing they alleged to have done wrong was discretionary.

                1. Ah, I see that the Westfall *decision* and the *act* of the same name are not quite the same.

                  Of course, if the Supreme Court or Congress meant to deny justice to someone defamed by a President (or a Congresscritter outside of the Speech and Debate Clause protections), then that would create a Constitution which was even more nationalist than allowed for by Justice Story (below), and I’m skeptical of an attempt to out-nationalist that Justice.

                  Anyway, I had relied on the post, which said “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.”

                  That doesn’t sound like the Westfall decision, whose summary I just looked out. The summary doesn’t say the Justice Department managed to substitute the U. S. as a defendant and then demanded dismissal due to sovereign immunity.

                  Getting back to the post – assuming it’s accurate – is there some founding-era precedent that a libel suit against a government official is actually a suit against the U. S.?

                  1. And the summary in the Westfall decision has this: “Respondents, husband and wife, brought a state-law tort suit in state court alleging that, while working as a federal civilian employee at an Army Depot, the husband received chemical burns when he was exposed to toxic soda ash that was improperly stored at the depot as a result of the negligence of petitioner supervisors.”

                    I wonder what the situation would have been if a supervisor in such a situation falsely told the press that “oh, he burned himself, it wasn’t us.”

                    1. You really indulged in your habit of talking to yourself in this thread.

                    2. Would you rather I talked to some random idiot troll such as yourself?

                    3. You ARE talking to an idiot troll when you insist on replying to your own pearls of wisdom.

                    4. Nuh-uh, YOU’RE stupid.

                      (I just thought I’d try living on your level for a while)

                    5. Way to demonstrate your stupidity to the unconvinced.

            3. “Maybe I could get some examples of this?”

              Westfall v. Erwin, 484 US 292 (1988). In that case SCOTUS held federal officials were immune from state tort lawsuits for money damages if (1) their conduct was within the scope of employment and (2) discretionary in nature. The Westfall Act (named after that case) eliminated the second standard, meaning federal employees had express statutory immunity if (1) was met.

              1. I read the opinion, and it doesn’t explicitly say it’s relying on sovereign immunity for its decision. Is it implicit?

                1. The clearest case on that is Wuterich v. Murtha (I’ve added a link to it). But the opinion in the Warren case also notes this: ” he FTCA waives the United States’ sovereign immunity for certain torts committed by federal employees while acting in the scope of their employment…. It does not, however, waive sovereign immunity for claims ‘arising out of … libel [and] slander.'” So the Westfall Act leads to the substitution of the U.S. instead of federal employees; and then sovereign immunity, not waived as to libel claims by the FTCA, precludes liability for the U.S.

                  1. Thank you, Professor and NToJ, for the information. It is indeed as bad as I thought!

                    From the Wuterich link:

                    ‘The Westfall Act’s “core purpose,” as the Supreme Court has explained, “is to relieve covered employees from the cost and effort of defending the lawsuit, and to place those burdens on the Government’s shoulders.”‘

                    But with defamation, the burden which the government takes on its shoulders is quite light indeed! The burden is taken from the employee and placed on the shoulders of the government, which can then shrug it off, and the plaintiff is left in the lurch.

                    As I see it, Congress certainly doesn’t have to let the U. S. be sued for damages – access to the federal treasury is up to Congress, and so the courts can’t assess damages against the U. S. unless Congress says OK.

                    That part I certainly understand.

                    And I suppose Congress, on behalf of the feds, can take on the burden of paying compensation for the illegal activities of federal employees, just as the counties and cities pay for the illegal activities of rogue cops. And thus let the misbehaving employees off the hook, just like someone paying someone else’s restaurant tab.

                    But if Congress isn’t willing to pay for the damages federal employees cause by their illegal actions, then it would seem to me that the employee himself should be assessed those damages. When Congress doesn’t put its money where its statute is, then I’d say the plaintiff has the right to sue the employee (assuming the employee has done something for which he’s legally liable).

                    This seems particularly important with Congresscritters in defamation cases, since Congresscritters already have the Speech and Debate Clause to shield them from defamation suits so long as they do so during Congressional proceedings – rather than during interviews with the media outside Congress, as in the case the good professor linked to.

                    I would think that the Founders already drew the line between what kinds of statements a Congresscritter can be sued for…and what kind of statements he is answerable for only to his own house.

                    As for Presidents, I see nothing in the Constitution about a privilege for them, although of course obviously this doesn’t stop him and the courts.

                    1. “But if Congress isn’t willing to pay for the damages federal employees cause by their illegal actions, then it would seem to me that the employee himself should be assessed those damages. When Congress doesn’t put its money where its statute is, then I’d say the plaintiff has the right to sue the employee (assuming the employee has done something for which he’s legally liable).”

                      Sensible enough position. Congress made a different policy decision with the Westfall Act. But personally I’m rather ok with allowing lawsuits against government actors for their personal misconduct. My view is not the prevailing one. The premise of qualified immunity is that that’s a bad idea. I never voted for qualified immunity.

                      I do think sovereign immunity is a good idea.

                    2. Suing government employees for things they do as government employees is a side attack on the government, for doing government things.

                      The courts are part of the government, and decline to be used to attack the government. If you want change, elect different people to run the government.

                    3. “If you want change, elect different people to run the government.”

                      What an original idea.

                    4. “What an original idea.”

                      I suppose it’s reasonably possible that you’ve never been presented this option before.

                    5. I’m going to just pretend you aren’t trying to bait me (though you *are* a master baiter) and give you a serious answer.

                      The Constitution will only get enforced if, and to the the extent that, the voters want it enforced. Judges follow the election returns eventually.

                      If the public lets public servants defame them with impunity, then that’s what’s going to happen.

                    6. I’m going to pretend that you’re actually of almost-normal intelligence, and that you can figure some of this out on your own.

    3. “Did the people in 1791 have a recognized right to sue those who defamed them?”

      This would be easy to check… when did the state pass its Little Tort Claim Act?

        1. It’s in 8th-grade English, you poor bastard.

          1. If it’s 8th grade level, then you must have had someone more intelligent than yourself write it for you.

            1. Unintelligible.

    4. Congress did not take away a remedy against federal officials with respect to libel. Even before the Westfall Act, a federal official had absolute immunity against a suit for defamation where the allegedly defamatory statement was made within the (broadly construed) scope of his or her employment. Expeditions Unlimited Aquatic Enterprises v. Smithsonian Institution, 566 F.2d 289 (D.C.Cir.1977) (en banc). So, Westfall Act or no, there’s immunity. While this may seem to make the Westfall Act irrelevant with respect to libel, recall that it also applies to many other kinds of torts, some of which the United States has consented to. A possibly interesting question is whether Trump asserted, and the state court rejected, an argument that Trump was acting within the scope of his employment. If the pre-Westfall absolute immunity test for scope of employment and the Westfall Act’s test are similar enough, maybe that would raise a law of the case issue, though, even if so, that’s no help to Carroll once the case gets beyond a trial court.

      1. Well, it’s one thing to say on the merits that a remark within the scope of one’s official duties isn’t subject to defamation damages. It’s another thing to say the courts can’t resolve the merits of the case at all.

        1. If the defendant has absolute (or, in the case of the United States) sovereign) immunity and damages, dismissal of the case seems to follow as a matter of course. The federal courts are far too busy to have a roving commission to fact check statements upon request if there’s no case or controversy, and with no damages, I don’t see a case or controversy. Journalists and voters, on the other hand, are free to do so.

          1. “The federal courts are far too busy to have a roving commission to fact check statements upon request if there’s no case or controversy”

            Well, bless your heart, I didn’t say they had such a commission, not if you express it at such a level of generality.

            1. What principle of specificity do you want to use to take this out of the mine run of libel cases, or even libel cases against government officials?

              1. Check the case to see if it’s covered the Speech and Debate Clause – that is, (a) is the defendant a Congresscritter and (b) is the statement covered by the clause?

                https://reason.com/2020/09/13/libel-lawsuits-against-federal-government-officials-e-g-senator-warren-or-president-trump/#comment-8457050

                1. The President is not covered by the Speech and Debate Clause so that was easy.

                  1. You’re painting yourself into a corner, putting yourself in a position where you’re not only defending Donald Trump, but defending him with the dumbest arguments imaginable.

                    All for the sake of scoring Internet points. A currency which liquor stores don’t even recognize, so I don’t see why you even bother.

                    1. I’m going to regret this, but WTF are you talking about?

                2. Eddy, theoretically at least, libel suits could be filed against tons of federal employees much less exalted than Presidents or Members of Congress. The Smithsonian anthropologist who gives an adverse opinion to a foreign counterpart about plaintiff’s ability to conduct an excavation (the Expeditions Unlimited case). Or the USDA inspector who says plaintiff’s beef is Select rather than Choice. We the public require a USDA employee to make such calls, and she shouldn’t have to dip into her own purse to defend a libel suit brought by a disappointed packer, even a defamation suit where there are no damages in the offing and the plaintiff only wants a federal judge to tell the grader she was wrong. In some cases there may be non-defamation remedies available. I have no idea whether the meat grading is administratively appealable, but we don’t want a system where employees who make statements as part of their jobs put their personal life savings at risk by doing so.
                  The remedy, if any, should be against the government. In any event, it is the general rule that you need a live case or controversy to be in federal court, and the Speech and Debate clause is not some narrow carve out from that general principle.

                  1. I would have hoped that the courts wouldn’t pull a bait and switch on us, discoursing about the poor meat inspectors when in reality they’re protecting Congress members and other government employees who go to press conferences and badmouth private citizens (or U. S. Marines, as in one case).

                  2. I suspect that this sort of immunity is only a privilege of Very Important People. I’d be extremely surprised if the DOJ intervened when a meat inspector was accused of rape, called the accuser a liar, and was sued for slander.

                    Of course, the hypothetical meat inspector’s statements had nothing to do with his job duties, unless they were made to an internal investigation of the rape charges. But I do not think it is appropriate to put Trump’s statements under his job duties either. To classify campaigning for reelection as a job duty gives an inappropriate advantage to incumbents over challengers.

          2. In retrospect, I’m not sure I thought through the possibility that injunctive relief (“don’t say it again”) might be available in some defamation cases or, even if not actionable in some circumstances, at least be a case or controversy.

        2. Although come to think of it, I would have thought the scope of official immunity for libel (and other speech-related offenses) was dealt with in the Speech and Debate Clause.

          This clause (a) only applies to Congresscritters, and (b) not always to them, but only in specific circumstances.

          Why go to the trouble of providing the limited protection of the Speech and Debate clause if there already existed a broader protection of official speech against libel (and other) actions?

          1. “Why go to the trouble of providing the limited protection of the Speech and Debate clause if there already existed a broader protection of official speech against libel (and other) actions?”

            For people of small intellect. We want you to have at least some idea of what’s going on.

            1. I think you saw too many movies where the smart characters were egocentric and arrogant, and decided that behaving like an asshole would make you smart.

              If your IQ was a dick it would be two inches long when fully erect.

              1. If your IQ was a dick it would be concave.

                I think you misunderstand. HAVING a big dick is good (you’ll just have to take my word for that), but BEING a big dick is not serving you well at all.

          2. Note that the S&D clause applies to criminal as well as civil liability, so characterizing this as “broader” protection is not quite right.

      2. Well, actually the Westfall Act perhaps did somewhat contract the availability of libel suits, because the Westfall decision to which is was a reaction had held that absolute immunity did not apply to nondiscretionary functions. But I don’t think Trump’s acts were non-discretionary, though who knows, Westfall wasn’t a libel case and I’m guessing there weren’t all that many libel precedents before Congress acted.

  8. Can anybody point me to a copy of the Complaint? The useless newspapers link only to their own articles about it, and refuse to publish the original complaint.

    1. https://www.courtlistener.com/docket/18418220/carroll-v-trump/

      The complaint is Exhibit A to the removal notice (ECF No. 1). It was refiled as ECF No. 6, but nobody has bought that version on RECAP yet.

        1. You’re the real hero.

  9. Since it came up, the Speech and Debate Clause in the Constitution declares, “…for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.”

    “In his Commentaries on the Constitution of the United States (1833), Justice Joseph Story wrote that in England the privilege was “strictly confined to things done in the course of parliamentary proceedings, and [did] not cover things done beyond the place and limits of duty.” To illustrate this limitation, he noted that although a libelous speech delivered in the House of Commons was privileged, if a Member republished that speech elsewhere, the libeled party was free to bring him to court. He then added that “the same principles seem applicable to the privilege of debate and speech in congress.””

    https://www.heritage.org/constitution/#!/articles/1/essays/27/speech-and-debate-clause

  10. Since I don’t think anyone has mentioned this, I’m interested in what Eugene (or others) think the relevance of the provision in 28 USC 2679(d)(2) is, which states: “The certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” Now it doesn’t state (and the analogous provision in (d)(1) doesn’t state either) that it also shall be conclusive for purposes of substituting the United States as the party defendant, but it still seems to me this is an additional hurdle (before one even gets to whether Trump’s statements are otherwise “acting within the scope of his office…”).

    1. In the Supreme Court’s words, “The United States … must remain the federal defendant in the action unless and until the District Court determines that the employee, in fact, and not simply as alleged by the plaintiff, engaged in conduct beyond the scope of his employment.” Courts have concluded that the plaintiff bears the burden of rebutting the AG’s certification, by a preponderance of the evidence.

      1. Thanks! It is a bit odd that the determination of “scope of office” for purposes of removal can’t be rebutted (I assume that’s the import of the statute) but the same “scope of office” for purposes of substituting the US as defendant can be….

  11. It seems to me that Ballenger has created a ridiculous standard. There are legitimate reasons for an elected official to lie to constituents. The easiest example is to protect a military operation. However, lying about your personal life to protect your approval rating in the eyes of your constituents does not seem to me to be a governmental function.

  12. I wonder if Ballenger is correctly decided. If Biden, say, is asked today about Tara Reade and she sues for defamation over what he says in response, no immunity. If he’s asked elected and is then asked about Tara Reade on Jan. 25 and makes the same response, he’s off the hook. I guess there’s a sliver of a difference. Today when he (hypothetically) defames Reade, he’s merely a private citizen who wants to become an official and there’s not government interest in his being able to foster public trust (to the contrary, there’s arguably an interest in vetting job applicants, whether Biden, Kavanaugh, Trump, whoever). Once he’s got the job, the interest the cited case relies on, retaining public trust that is helpful to doing his job, kicks in. But I’m not convinced that’s enough a distinction to really matter.

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