Trump waived his right to have the U.S. appear as a party in the Jean Carroll defamation case

Waiver is a scary word in the legal profession. It means the lawyer did not timely raise an argument and the court therefore will not entertain it. In this case, a jury found a man liable for defaming a woman by calling her a liar when she accused him of sexual assault; the jury awarded her $17.5 million in compensatory damages and $65 million in punitive damages. The question is whether the defendant, who made these defamatory statements as a federal employee, can substitute the United States as a party, a maneuver that presumably would require the government to pay out the damages.

The defamatory words came from the the President of the United States, who, according to the jury, rammed his fingers into the vagina of a woman in a Bergdorf-Goodman dressing room against her will. The victim is E. Jean Carroll, and the defendant is Donald J. Trump. The case is Carroll v. Trump, issued on August 8.

There were two trials. The first, for sexual assault and the first round of defamation, yielded a huge verdict. This round of defamation arose post-trial, when Trump verbally attacked Carroll from the White House on June 21-22, 2019. That led to a second trial for defamation. The second trial is the subject of this appeal, which does not resolve whether the jury got it right in ruling against Trump but whether the United States should be added as a party. The theory is that since Trump defamed Carroll from the White House when he was President, he was acting withing the scope of his employment in committing this actionable tort.

The substantive issue -- whether Trump was acting in the scope of his employment -- is unresolved. The District of Columbia Circuit Court of Appeals, which took on this issue at the Second Circuit's request a few years ago, did not resolve it, leaving this task to the district court. But at the district court level, the government declined to brief whether Trump was acting within the scope of his office. The case then went to trial, and the jury ruled in Carroll's favor.

In the Court of Appeals, Trump, and his Justice Department, revives this issue and wants the Second Circuit (Chin, Merriam and Kahn) to rule that, under the Westfall Act, he did act within the scope of his employment in defaming Carroll. Too late, says the Court of Appeals. The Westfall Act allows the United States to be substituted as a party in a lawsuit against a federal employee who acts within the scope of his employment, which would mean the plaintiff can only sue under the Federal Tort Claims Act, an entirely different legal scheme than the one invoked by Carroll in her defamation suit. 

Under the Westfall Act, this motion to name the U.S. as a party is untimely; Trump's lawyers should have done it prior to trial, not when the case is on appeal. Other Circuit Courts have similarly ruled in other cases, and this holding is now the law in the Second Circuit. In addition, the Court holds, even if the Westfall Act allowed Trump to seek this relief now, we have a waiver problem. He could have raised this issue previously but failed to do so.