D.C. court to decide if remarks within purview of Trump’s job

NEW YORK — An appeals court in Washington, D.C., has been asked to help decide whether Donald Trump was doing his job as president when he denied raping a woman and dismissed his accuser as “not my type.”

The columnist, E. Jean Carroll, sued Trump in 2019, claiming the Republican raped her in the mid-1990s inside a dressing room at a Bergdorf Goodman department store in Manhattan, then lied about it and smeared her character when she decided to tell her story publicly.

Because the alleged attack happened so long ago, Carroll was originally barred for suing over sexual battery, so she sued for defamation, making the suit largely about disparaging comments Trump made about the rape allegation.

In a 2-to-1 decision Tuesday, a panel of judges on the New York based 2nd U.S. Circuit Court of Appeals asked the D.C. Court of Appeals, the highest court in the District of Columbia, to decide whether Trump’s public statements denying Carroll’s claims occurred within the scope of his employment.

If so, he would be entitled to immunity from the lawsuit, the 2nd Circuit judges ruled. But the United States could potentially be held liable for any defamatory statements Trump made as a federal employee.

The 2nd Circuit said courts have been inconsistent in previous rulings and the D.C. Court of Appeals might be in the best position to answer the question.

“We are confident that the D.C. Court of Appeals will find that our client was acting within the scope of his employment when properly repudiating Ms. Carroll’s allegations,” said Alina Habba, a lawyer for Trump.

In a majority opinion written by Circuit Judge Guido Calabresi, two members of the 2nd Circuit’s three-judge panel said they were not expressing any view on whether Trump’s public statements were defamatory or whether a sexual assault had occurred.

In a dissent, though, Circuit Judge Denny Chin said the other members of the panel were wrong in concluding Trump was an employee of the government according to the Westfall Act. He said the law was intended to protect low-level, rankand-file government employees rather than the president.

And he said he would also conclude that at least some of the statements Trump made about Carroll were not made within the scope of his duties as president. He pointed in particular to Trump’s comment that Carroll was not his type.

Carroll’s lawyer, Roberta Kaplan, responded to a request for comment by citing Chin’s dissent, calling it a “powerful opinion.”

“We are confident that the D.C. Court of Appeals, where this case is now headed on certification, will agree,” she added