A federal appeals court on Friday grappled with the Justice Department's effort to intervene on behalf of former President TrumpDonald TrumpMark Walker to stay in North Carolina Senate race Judge lays out schedule for Eastman to speed up records processing for Jan. 6 panel Michael Avenatti cross-examines Stormy Daniels in his own fraud trial MORE in a defamation lawsuit from the writer E. Jean Carroll, who alleges that he raped her in the ’90s.
A three-judge panel for the New York-based 2nd U.S. Circuit Court of Appeals questioned the arguments from the Biden administration and Trump's personal lawyer that the former president's comments about Carroll in denying her allegations were made within the scope of his official employment as government official.
If the circuit court rules that Trump cannot be sued in his personal capacity, it would doom Carroll's case, which alleges that the former president went on a "defamation rampage designed to crush her" when she went public with her allegations in 2019.
Judge Denny Chin questioned whether Trump's attacks on Carroll could be construed as statements he made within the scope of his official duties.
"Who is he serving when he says something like 'she's not my type,' " asked Chin, an Obama appointee. "Is he serving the United States of America when he makes that statement?"
Alina Habba, one of Trump's personal lawyers, responded that he was, that the president was addressing a question from the press that concerned his fitness to hold office.
"Absolutely," Habba said. "Because he has to address the fact that this could not and would not have happened – he did not do it."
Carroll filed her lawsuit against Trump in his personal capacity in 2019, arguing that the then-president had slandered her in responding to her allegations, including during an interview with The Hill in which Trump accused her of lying and said, “I’ll say it with great respect: No. 1, she’s not my type. No. 2, it never happened. It never happened, OK?”
In 2020, the Trump administration's Department of Justice (DOJ) moved to intervene in the case, citing federal law that shields public officials from such lawsuits when they concern conduct that occur within the scope of their employment. The move was widely criticized by Democrats and some legal experts as an abuse of the department's resources to protect the president's personal interests.
A district court judge rejected the DOJ's arguments, forcing the Trump administration to appeal. And earlier this year, Attorney General Merrick GarlandMerrick GarlandManchin open to supporting Supreme Court pick more liberal than him DOJ greenlights use of grant funds to bolster security for election workers Progressives see Breyer retirement as cold comfort MORE outraged Democrats in Congress when the DOJ continued its efforts to intervene on Trump's behalf before the 2nd Circuit.
DOJ attorney Mark Freeman argued on Friday that there are important institutional interests for the government at stake in the case.
"The former president made crude and offensive comments in response to the very serious accusations of sexual assault made by Ms. Carroll," Freeman said. "I'm not here to defend or justify those comments. I'm here because any president facing a public accusation of this kind ... would feel obliged to answer questions from the public, answer questions from the media."
Chin asked, "Can a president or a congressperson on the steps of the Capitol or the White House say anything they want and be protected as long as there's a reporter there listening? Is that the government's position?"
Freeman demurred, saying that the DOJ is not asking the court to come up with a categorical rule for what would be protected speech from a sitting president.
Joshua Matz, a lawyer representing Carroll, argued that if the court accepts the position put forth by the DOJ and Trump's attorneys it would send the message that the highest officials in government can escape responsibility for their actions.
"Denying a remedy in the name of the nation's sovereign immunity is at odds with the maxim that nobody is above the law," Matz said. "And we would submit simply submit that a White House job is not a promise of an unlimited prerogative to brutalize victims of prior wrongdoing through personally-motivated attacks. That isn't the law, no court has ever said it's the law and we would ask this court not to make it the law."
At least one member of the panel, Judge Guido Calabresi, seemed inclined to transfer the case to federal district court in D.C. to litigate over the question of whether Trump's comments were protected under local law.
The judges also appeared skeptical of Habba's arguments that Trump was forced to respond publicly because Carroll had gone on the offensive with her accusations.
"She went to the press. She was a public figure," Habba said. "She went and put out an excerpt to the New York Magazine. Then she published a book. She made it public. She was on the aggressor side."
When asked by the judges whether there is any limit to the legal immunity that she believes covers presidential speech, Habba responded. "My limit to you, Your Honor, in plain English would be an unprovoked attack on a citizen. That is not what happened here."
Referring to local law covering scope of employment issues, Calabresi asked, "What D.C. case do you cite me for saying that provocation is even relevant?"
Habba responded that she could not cite a specific case but the court should take note of the context in which Trump made his comments.
"Whether it goes to the fitness of the president who was sitting, running the country, and I think in this case, it did," she said. "He had to address it. When the press ... asks him a question about a story which would go to his fitness to sit — whether it is true or untrue — he needs to respond."
It's unclear when the panel might issue a decision.