Trump DOJ *Still* Trying To Grab E. Jean Carroll By The Process

On April 11, the Justice Department moved to substitute itself as defendant in the E. Jean Carroll defamation case. More than a year after a jury found President Trump liable for defamation and ordered him to pay the advice columnist $83 million, the government is trying to grab the case by the Westfall Act in on the theory that, when you’re the president, they let you do it.

It’s an exceptionally weird turn of events, since we’ve already been here before.

On September 8, 2020, the Department of Justice first moved to substitute the United States in the advice columnist’s defamation suit under the theory that Trump was doing official president stuff when he defamed. The case was originally filed in New York state court in 2019, and when Trump was ordered to submit to DNA testing, Attorney General Bill Barr threw himself on the proverbial grenade.

Or tried to anyway.

The removed case landed on the docket of Judge Lewis Kaplan, who might fairly be called a cantankerous old bull. The court immediately chided the government for docketing the suit as Carroll v. US. It was re-captioned as Carroll v. Trump, and so it remained, although it was informally referred to as Carroll I after a second identically titled case was filed in 2022. In any event, Carroll II went to trial first, with a jury finding Trump liable for defamation and sexual abuse on May 9, 2023.

Carroll I was delayed by two years of peregrinations at the Second Circuit and the DC Court of Appeals on the question of whether Trump was acting in his official capacity when he called Carroll a liar and claimed she was too unattractive to sexually assault. Eventually everyone decided that it was an issue for the trier of fact and dumped the case back in Judge Kaplan’s lap. At which point the judge said, as he had two years prior, that Trump was acting in his personal capacity when he slimed Carroll, and the Justice Department withdrew its effort to intervene. The case went to a jury in January of 2024, and Trump was once again found liable for defamation. Trump has appealed both cases, although without success thus far.

But now Trump’s pals are back in charge of the Justice Department, and they’re demanding a mulligan.

On April 11, Donald Trump in his personal capacity and Donald Trump in his official capacity “jointly move[d] to substitute the United States for President Trump pursuant to a certification issued under the Federal Torts Claims Act, as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988.”

Well, if you want to get technical, it was Trump and the DOJ — but since Attorney General Bondi has informed everyone at the Justice Department that they work for Trump, that would appear to be a distinction without a difference.

“Substitution is required because once the Attorney General certifies that a defendant is acting within the scope of his office or employment, the United States is the party defendant unless and until a court rules to the contrary,” they write, cheerfully omitting to mention that multiple courts already ruled to the contrary two years ago. If allowed, the substitution would potentially moot the case post-verdict, since the federal government cannot be sued for defamation. Or possibly it would leave the US taxpayer on the hook for the $83 million in damages. Who can say?

The appeal is currently set for oral argument in June before the Second Circuit, and yesterday the clerk dumped this hot mess on the merits panel.

Are we tired of winning yet?

Carroll II [Second Circuit Docket via Court Listener]

Carroll II [SDNY Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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