LIVEBLOG: E. Jean Carroll Takes On Trump At The Second Circuit

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It's fightin' Friday in New York as E. Jean Carroll goes another round with gross alleged rapist and former president Donald Trump. While in office, Trump ducked the process server like a deadbeat dad when Carroll sued him in state court. Then when she was just about to get discovery, including taking a DNA sample to match against male genetic material on the dress she says she wore the day of the assault all those years ago in a Bergdorf Goodman's dressing room, Bill Barr swooped in and tried to substitute the government as a defendant in the defamation case under the Federal Tort Claims Act.

And if you are wondering what the hell saying a woman is too grody to rape has to do with the job of presidenting, then you are in agreement with US District Judge Lewis Kaplan who ruled in October 2020 that the president is not an employee for purposes of the Federal Tort Claims Act, and even if he were, that this conduct would have been outside the scope of his employment. So the DOJ was out and Trump was back on the docket as the named defendant.

But then the government appealed. Yes, we know you all hate AG Merrick Garland — DOJ gonna DOJ.

That brings us to today, when the Justice Department is arguing at the Second Circuit to stay in the case as defendant, and Carroll's superstar attorneys at Kaplan, Hecker, & Fink, Joshua Matz and Roberta Kaplan will make the case that they were appropriately yeeted and should stay that way.

The case will be heard by a three judge panel consisting of Judge Denny Chin, a Clinton Obama appointee, Judge Guido Calabresi, another Clinton appointee, and Judge William Nardini, a Trump appointee. Fun fact: Judge Nardini, age 52, clerked for Judge Calabresi, age 89.

Okay, let's get it on! Hot liveblog action comin' at ya.

10:40 Mark Freeman for DOJ says he's not here to justify those "crude" comments about Carroll, but Trump was asked a question about the news.

Judge Chin (I think?) asks if ANY comment about the news is covered under the federal tort claims act.

Judge Calabresi asks what law determines whether it's within the scope of employment, speculates that it's DC local statute.

10:42 "Nonsense, nonsense!" thunders Judge Calabresi at the DOJ attorney, says that federal court decisions about DC employment law is just a guess.

Fun start!

10:45 Judge Calabresi: "Let me just be very blunt. Why shouldn't we do what we do in these cases, certify the question to the courts of DC?"

(Remember that the Justice Department removed the case from state court to federal court under the Federal Tort Claims Act.)

Freeman says that public officials have to speak about public events, so it's a question of federal law, not DC law.

Calabresi is having exactly none of it.

10:50 Judge Calabresi: "It is up to local law to decide."

Freeman responds that the issue is whether the government can substitute itself as defendant under federal law. Calabresi counters that the issue is whether Trump saying he wouldn't rape Carroll because she "wouldn't be my first choice" was within the scope of employment under DC statute.

10:55 LOL, looks like Trump's regular lawyer Mark Kasowitz is out and this goofball lady from Bedminster, NJ is coming in for him. Her name is Alina Habba, and she's not exactly what you'd expect from a billionaire in federal appellate court. She's the one who demanded that the Pulitzer Committee withdraw the prizes for the Times and the Post because RUSSIA HOAX WITCH HUNT.

10:56 Judge Calabresi, in his lightly accented gentle voice, is still kicking the DOJ lawyer's ass on a relatively abstruse issue of scope of employment law. He's just posed a hypothetical in Posneria and Calabresia (for Judge Richard Posner and himself, lol).

"Neither lawyer nor court know much about tort law. Unfortunately you have someone who has spent 60 years teaching it."

11:00 Habba up: "This case is meritless."

Habba says that Trump isn't worried on his own account: "It is solely to protect the presidency as an institution."

Judge Nardini (I think) says this is a choice of law question, not about the power of the presidency.

Habba making the interesting choice to tell the judges they're wrong. Cool deal.

11:03 Habba takes the maximalist position that basically everything the president says is within the scope of employment.

The court asks her if Trump should have been considered an employee under the Westfall Act. Seems like kind of a superficial analysis, not a great tactic with Judge Calbresi, who is in love with weedsy analysis and is now going on about legislative history.

11:11 Habba is arguing that Westfall Act applies to the executive branch, and the president is part of the executive branch. The lower court held that he's above it.

Calabresi is envisioning a tort case arising out of golf game between the Presidents of US and France which goes awry. Did I mention he's 89?

Habba: "The president can be disciplined, if you look at President Trump, he gets disciplined a lot."

And lo, lightning did not strike her on the spot.

Habba goes on to attack Carroll, says she was "on the aggressor's side" by writing a book, so Trump had to comment in his own defense.

Judge Chin points out that Trump went way beyond denial to say "she's not my type," wonders how that's within the scope of employment.

Habba whiffs, badly IMO.

Judge Calabresi: "The problem is that you're discussing it with Judge Chin and you could be discussing it with me" then returns to saying "it's up to DC."

Judge Nardini presses Habba to come up with a hypothetical of something that would be outside the scope of employment. "What is the limiting principle you would propose?"

"Within the scope of DC law," Calabresi shouts.

Habba says that an unprovoked attack would be outside the scope, unlike here where Carroll "provoked" Trump.

Judge Nardini is walking her through it like a law student. "I don't understand the provocation point."

11:15 Habba says that Trump had to comment because it went to his fitness as a president.

Judge Calabresi says "that's an interesting argument that DC courts might accept."

Habba says that "Hillary Rodham Clinton used [this law] to keep her private servers private."

Habba: "When somebody says he did a heinous crime twenty years ago, he needs to address it."

Judge Calabresi: "You can't make me an argument that Congress should have not made this a state question."

11:21 Joshua Matz, for Carroll, begins with scope of employment. Says that conduct for private motives like "revenge or retaliation" is outside the scope of employment under DC law.

Man is he a good lawyer. He's the one who just won that case against the Charlottesville Nazis.

Matz rubbishes the "provocation test" Habba just put forward, argues that the DOJ is taking the opposite stance in Swalwell v. Brooks, in which it is currently arguing that under the FTCA Rep. Mo Brooks is not entitled to be defended by the federal government for his remarks at the January 6 insurrection rally. (I'll put links in the next time Judge Calabresi goes off on a tangent.)

11:25 Oh, boy. Here's that tangent on the bifurcation of tort law in America in the 40s. DRINK.

11:27 Judge Chin (I think) says that the test isn't really whether an employee's action "benefits" an employer anymore, refers to an employee at a laundromat who shoots someone on the premises. Judge Calabresi is talking about olde-timey bill collectors beating up debtors and "dirty dancing analysis."

11:32 Judge Nardini (I think) asks Matz to explain why his opponent is wrong when she argues (even poorly) that the president is constantly being asked to prove and comment on his fitness for office.

Matz is happy to let the DC Court certify the issue — i.e. decide whether Trump's comments were within the scope of employment — since that's clearly what Judge Calabresi wants.

Judge Calabresi: Suppose the president is awarding medals ... sees someone who insulted him, and as he puts the medal and chokes him. And maybe kills him. Is that within the scope of employment?

Matz says UH NO.

11:35 Judge Calabresi says presidents often lie and break the law, but says that it's impeachable when "somebody like Mr. Nixon" does something that's for his own benefit.

Judge Chin gets Matz to agree that a mere denial of Carroll's rape allegation would be within the scope of employment, but that calling her a liar too ugly to rape is not.

Judge Nardini says why is the denial not defamatory, but calling her a liar is. Matz says the issue is whether he's acting for private motive.

11:40 Nardini is getting to a good point here. If mere denial is not defamatory and is within the scope of employment, then why is all the rest of the horrible shit Trump said about Carroll outside the scope.

Matz says the issue is "private motive," not "improper purpose," goes back to "retaliation" an "animus" as laid out in DC law.

Judge Calabresi jumps in to give a case history of DC scope of employment precedent.

11:43 Judge Chin doesn't seem inclined to send the case to DC court to decide, steers Matz back to federal issue of whether the Federal Tort Claims Act and Westfall Act apply to the president. Remember, these laws substitute the government as defendant in cases against government employees for conduct within the scope of government employment.

Matz points out that the law wasn't enacted for the benefit of government employees, rather it was for plaintiffs so they could actually sue someone who could afford to pay.

Oh, lord, Judge Calabresi is back to the Golfing With Foreign Leaders tort hypothetical.

11:50 Judge Nardini is now wading into the case of the Frenchman beaned by a golfball hit by the US President. WTF???

Matz is trying to swim back to shore here, return to the issue of whether the Federal Tort Claims Act applies to the president.

Judge Calabresi: "If you don't like my golf course, suppose he's in his official car. The president is in a hurry and says "go speed" ... Do we want the fact that in 1946, given what they were trying to do to make victims whole ..."

Judge Calabresi is trying to get to what people injured by a president are supposed to do, should the law exempt the highest officer if the point of the law is to help victims?

Matz says that the legislative history doesn't support that.

In conclusion, Matz says "denying a remedy on the basis of sovereign immunity" flies in the face of the precept that no one is above the law.

11:53 Freeman is up for DOJ on rebuttal, a back and forth on the applicability of FTCA and Westfall Act to the president and congressional intent.

Judge Calabresi hammers his point about needing to send to DC: "unless the outrageousness in DC defines the scope"

Freeman says DC law uses time and place to determine scope, and these comments were made on South Lawn and Airforce One.

11:55 Habba up for rebuttal next.

OMG she went there: "What are we going to do if Kyle Rittenhouse goes after President Biden for calling him a white supremacist?"

Habba says that Trump didn't want to diminish the severity of "real assaults."

Habba attacks Carroll: "She made this a matter of public concern, he did not."

Judge Calabresi takes this as evidence that the case should go to DC courts for certification on the issue.

COURT ADJOURNED.

POST SCRIPT: To clarify, what Judge Calabresi wants is for the federal court to ask DC municipal court (is there a better word for that?) to decide whether Trump's comments about Carroll are within the scope of employment as a matter of DC law. His theory is that this is dispositive as to whether the federal government can substitute itself as a defendant.

The other judges, as federal judges are wont to do, think themselves perfectly capable of ruling on an issue of state law and seem less inclined to ask DC court for clarity — and anyway the DC court could tell them to thanks but no thanks, in theory.

My impression of the case is that Trump didn't bring one of his really good lawyers, and it showed. The DOJ lawyer did better, but he's arguing that saying a woman is too ugly to rape is within the scope of employment, which isn't a great position. Joshua Matz is a superstar, although he got tripped up trying to parse why Trump denying the allegation was non-defamatory and within the scope of employment, but the rest of the horrible, insulting shit was not part of the job.

We'll keep you posted.

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.

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