Trump v. Carroll sexual assault case reaches the Second Circuit

The sexual assault and defamation case that Jean Carroll has filed against Donald Trump has reached the Second Circuit. Recall that this case started when Trump called Carroll a liar and then New York State revived the statute of limitations for certain sexual assault cases, allowing Carroll to sue Trump for both alleged assault (which allegedly took place in the 1990s) and for defamation. The state court case was removed to federal court on diversity grounds and the Second Circuit had to determine whether Trump's allegedly defamatory comments were made within the scope of his employment as President of the United States.

The case is Carroll v. Trump, issued on April 21. It looks like there will be separate trials in this case. The sexual assault and defamation trial will proceed on April 25. The defamation trial involving post-presidency statements will take place in the future.

As for the defamation claim arising from comments he made in the White House, if Trump made his comments within the scope of his office as President, then the United States is the real defendant in this case, not Trump, and the President is absolutely immune from personal liability for any tortious acts while on the job. When this case last reached the Court of Appeals, a 2-1 majority said that the President is an employee of the government under the Westfall Act, formally known as the Federal Employees Liability Reform and Tort Compensation Act of 1988. But the Second Circuit was unable to resolve a related issue: whether Trump's conduct was within the scope of the President's employment. So the Court asked the District of Columbia Court of Appeals to apply District of Columbia law on this issue.

The D.C. Court of Appeals first ruled that it cannot opine on whether the President's scope of employment because that is an issue for the fact-finder, usually the jury. It further provided guidance for the trial in this case, which will proceed in the Southern District of New York, stating that the District of Columbia adheres to the Restatement of Agency, which is a scholarly declaration of the state of law in that jurisdiction based on case law, statutes, and scholarship. The DC Court of Appeals declined to find that the conduct of elected officials speaking to the press is always within the scope of that official's employment.  The ruling from the DC Court of Appeals is lengthy and discusses respondent superior liability in a manner that only a law profess would love. For the rest of us, it means the jury in this case will have more questions to answer, separate and apart from whether Trump raped Carroll and then defamed her character when she accused him of sexual assault.