Trump, The Carroll Case, And The Problem With Argument By Outrage

When The Law Is An Ass, It's Still The Law

We tend to attribute legal injustices to people we don’t like — Presidents, Attorneys General, prosecutors, members of Congress, and so forth. This is a barrier to legal reform. It allows us to believe we’ve corrected injustice when all we’ve done is defeat one particular wielder of it. It’s easier to think that one corrupt person, one unjust regime, is abusing power than it is to accept that American justice is systemically broken and vulnerable to abuse by anyone with their hand on the wheel. It’s uncomfortable to accept that injustice is routine and banal — which is very hard to fix — rather than headline-catching and notorious, which we imagine can be corrected with elections.

For example, take this week’s reactions to the U.S. Department of Justice’s intervention in Jean Carroll’s defamation suit against President Trump. Most of you are familiar with the background. Ms. Carroll accused Trump of raping her, Trump denied it and, in typical Trumpian fashion, sneered that she wasn’t his type. He’s been doing his best to get out of the case ever since, arguing unsuccessfully that courts should delay civil cases against him while he’s President. Now the Department of Justice has removed the case to federal court and filed a motion to intervene as a defendant, taking over the defense from Trump, saying that the United States, not Trump, should be the defendant.

Can they do that? Yes. Will the argument succeed? Very possibly.

The question begins with the doctrine of sovereign immunity. Under that doctrine, the government is immune from lawsuits unless it has waived that immunity. The federal government has waived its immunity to a limited extent, for instance through the Federal Tort Claims Act, which allows some kinds of claims against the United States. Now, on top of that, federal employees are generally immune for state claims for things done in the scope of their federal duties; the remedy is supposed to be to sue the United States, not the particular employee. A law called the Westfall Act governs this. When you sue an officer or employee of the United States government in state court, the Department of Justice can come in, move the case from state court to federal court, take over the defense, and demand that the United States become the defendant. Here’s the key language

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

That’s exactly what the Department of Justice did in this case: they filed a certification that Carroll’s lawsuit was targeted at conduct within the scope of his office, and therefore removed the case to federal court.

That’s not even the worst part for Ms. Carroll. If the federal court agrees that Trump was acting within the scope of his office, then the case is over. That’s because the United States hasn’t waived sovereign immunity for defamation claims — you can’t sue the feds for defamation, so a defamation case against the United States must be dismissed. She doesn’t get a jury trial on that question; it’s a question of law for the court, it’s her burden to prove that Trump wasn’t acting within the scope of his office, and the court may resolve it based on the allegations in her complaint.

This has provoked widespread outrage. People are aghast at the notion that it’s part of of the President’s job to talk about rape allegations against him from his private life before the Presidency. People are aghast that their tax dollars are used to pay for Trump’s defense on this. But what the law is, and what we feel it should be, are two very different things.

Because of the way that courts have defined “scope of office and employment,” Trump has at least a plausible argument that he was within that scope. Several courts have found that federal officials talking to the press — even in the context of private matters — are acting within the scope of their office. A sharp-eyed Twitter user pointed me to a case. In Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006), a Congressman sat for a press interview in an effort to manage the bad press resulting from his separation from his wife. He blamed his separation from his wife on factors including — and I am not making this up — her not liking living across the street from CAIR, which he described as an organization supporting terrorists. CAIR sued. The United States Court of Appeals for the D.C. Circuit held that this was within the scope of his employment as a Congressman, because politicians need to answer questions from the press and the public to keep their support:

Here, Congressman Ballenger acknowledges that his comment was “motivated in significant part by his desire to preserve his ability to continue advancing his legislative agenda in Congress and thereby best serve the interests of his constituents.” Ballenger Aff. ¶ 7. He knew and acknowledged that reports of his marital status “would be of concern in [his] socially conservative district,” and that “a public scandal related to [his] marital status could undercut [his] ability to carry out these responsibilities, both in the near term and in the long term if it were to become an issue in a future re-election campaign.” Id. at 7. Because the Congressman was acting, at least in part, for the purpose of preserving his effectiveness, this Court finds he was thus acting within the scope of his employment at the time of the incident in question. 

In this case, Trump will argue that part of a President’s job is responding to claims and accusations about both public and private matters, that such claims and accusations are routine, and that the President can’t govern effectively without responding to them in order to keep the support of at least some constituents. It’s a plausible argument under CAIR v. Ballenger. Is it a sure thing? No. For one thing, it may come down to questions of New York law. In determining whether a federal employee’s action was within the scope of his or her office for these purposes, federal courts look at the tort law of the state where the act occurred. Here, Carroll emphasizes that Trump published his allegedly false statements into New York. New York law may be narrower than D.C. law on this point, leading to a different result. But the argument is completely plausible under existing law.

So: that means that Jean Carroll may well never get her day in court, may never get the DNA test she’s been seeking, may never get to compel Donald Trump’s deposition, may never get a trial. Is that outrageous? As a matter of morals — of right and wrong — it may be. But outrage doesn’t lead us to the right legal answer. All sorts of outrageous things are perfectly legal. The fact that Trump’s argument seems, to many observers, to be outrageous doesn’t make it incorrect.

Here’s why that matters. When we argue from outrage, we don’t investigate whether the wrongness is not just about corrupt government officials like Trump and Barr, but about unjust rules that will produce outrageous results no matter who controls them. Voting Trump out of office, and consigning Barr to the historical rogue’s gallery of corrupt prosecutors, won’t protect anyone else from further outrages driven by an unjust system with unjust rules. Here, for instance, addressing the injustice would require amending the Westfall Act to narrow the scope of federal employee immunity. That’s hard and boring. But it’s the only way to change the legal system.

The hero may defeat the Big Bad in the season finale, but there’s always another season. To make real change, you have to go rough up the writers.

Postscript: Josh and I talked about this case on All the President’s Lawyers today.