Former POTUS Donald Trump has new legal trouble boiling on his busy stove after the Department of Justice may be turning up a burner it had previously shut off. As president — and well into his post-presidency — Trump had been shielded by the DOJ from defamation charges brought by E. Jean Carroll. Now new action in the Carroll case is threatening Trump’s protected status.
BREAKING: The DoJ has THROWN OUT it’s previous decision that trump’s defamation of E Jean Carroll was part of his job as president, and they will now RECONSIDER their decision once the amended complaint to consider his town hall comments is accepted. https://t.co/b1AY9zmLCr— Mueller, She Wrote (@MuellerSheWrote) May 26, 2023
The Justice Department’s defense of Trump in the case has long been controversial, with DOJ shielding Trump through both the Federal Tort Claims Act, which shields federal employees from individual damages claims, plus the Westfall Act, which permits employees to be removed from lawsuits as defendants and replaced by the U.S. government.
Attorney General Merrick Garland defended the Trump protection in 2021, saying:
“The job of the Justice Department and making decisions of law is not to back any administration, previous or present. Our job is to represent the American people. And our job in doing so is to ensure adherence to the rule of law, which is a fundamental requirement of a democracy, or a republic or a representative democracy.”
But the DOJ letter here (May 26, 2023) to Judge Lewis A. Kaplan contemplates a change in status and considers whether the amended complaint Carroll is seeking — filed after Trump’s appearance at the CNN Town Hall, during which the plaintiff alleges Trump defamed her again — becomes the controlling document in the case and challenges the protection Trump enjoyed.
With the citation below, the letter acknowledges precedent that may render Trump’s protected status moot under the Westfall Act.
(“An amended complaint acts as a complete substitute for the original complaint and the case proceeds only on the allegations in the amended complaint…Thus, when Plaintiff filed her amended complaint, that became the controlling document in the case. The Government’s prior request to substitute itself for [the defendant] under the Westfall Act…were rendered moot.”)
Donald Trump's legal battle heats up.— Brian Allen (@allenanalysis) May 26, 2023
In response to the plaintiff's letter brief, the United States requests the court to resolve the motion to amend the complaint first. Then, allow 30 days for the joint proposed briefing schedule on the substitution issue. Citing Westfall… pic.twitter.com/Qutg7wJBLJ
The DOJ writes that if the judge allows the amended complaint, it will need time to consider new evidence currently under seal or thus far not filed before making a determination as to its actions going forward.
DOJ writes: “As this Court is aware, most recently the D.C. Court of Appeals clarified the applicable standard to be applied to the scope of employment question. Additional time is requested to permit consideration of the new evidence and the new allegations under the clarified standard.”
The commenter shown below was measured in assessing what the change in status, if it goes forward, may mean:
I read it this way. Because the complaint has been amended, all the government’s previous claims are off the table until it gives new consideration to the new complaint. In other words they may choose to stand down. It might be a face saving opportunity for DOJ.— Horatio McFlabbergasted (@HMcdoolittle) May 27, 2023