Left: Former President Donald Trump is seen on October 18, 2023 outside the New York State Supreme Courthouse during his civil fraud case in New York City (Photo by: zz/Andrea Renault/STAR MAX/IPx 2023 10/18/23). Right: E. Jean Carroll leaving the United States District Courthouse poses for a group photo with her legal team after a jury awarded her $83.3 million in damages incurred through defamation by Donald Trump (Photo by Derek French / SOPA Images/Sipa USA)(Sipa via AP Images).
A panel of three judges denied former President Donald Trump’s bid to replace himself with the Department of Justice in his ongoing effort to overturn the $83 million defamation judgment in favor of E. Jean Carroll.
Just days before the June 24 oral arguments at the 2nd U.S. Circuit Court of Appeals, Senior U.S. Circuit Judge Denny Chin, appointed by Barack Obama, and U.S. Circuit Judges Sarah Merriam and Maria Araújo Kahn, both appointed by Joe Biden, dismissed Trump’s attempt to apply the Westfall Act. The panel has not disclosed its rationale yet, and the timeline for that disclosure remains uncertain.
According to the panel’s one-page order: one-page order:
Oral argument in this matter is scheduled for June 24, 2025. Appellant has moved to substitute the United States as a party pursuant to the Westfall Act, 28 U.S.C. §2679(d).
IT IS HEREBY ORDERED that the motion is DENIED. The Court will issue an opinion detailing its reasoning in due course.
As far back as 2020, and just months before the election, Trump asserted that he was covered by the Westfall Act — which extends protection against tort claims, such as defamation, to federal employees by substituting the government as the defendant — because he was “acting within the scope of his office as President of the United States” when he called Carroll’s rape accusation a politically and financially motivated lie or “hoax” and when he denied knowing who she was or ever meeting her.
Much has happened since then, including a change of administrations. After the Biden administration’s reversal on Westfall Act immunity, a $5 million civil jury verdict in 2023 found Trump liable for sexually abusing Carroll in the 1990s and liable for defaming her when calling the allegations a “hoax” decades later during his first term as president.
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The 2nd Circuit just last week denied Trump an en banc rehearing of his appeal of the $5 million judgment, to the dismay of two Trump-appointed judges who called Senior U.S. District Judge Lewis Kaplan’s evidentiary rulings “indefensible” — partly because the trial didn’t allow the president to explore whether Carroll’s allegations and lawsuits were politically motivated and financially backed by Democrats.
In 2024, a separate jury ordered Trump to pay $83 million in damages, also for defamatory statements, and the president’s appeal in this case is set to be argued next week — but the DOJ apparently won’t be doing the arguing.
When the DOJ filed its motion to substitute in April, it again asserted that Trump, a federal employee, was “acting within the scope of his office or employment at the time of the incident out of which” Carroll’s defamation claims “arose.”
Just 10 days later, Carroll’s legal team countered that Trump should not be rewarded with Westfall Act substitution on grounds of belatedness, blaming his then-private lawyer Alina Habba for “doing nothing”:
The Westfall Act expressly provides a party like Trump with the right to petition the court “before trial” for a determination as to whether the party was acting within the scope of his employment in connection with the acts in question. Trump, however, then being represented by the now-acting United States Attorney for New Jersey Alina Habba, decided to forfeit this right to invoke [the law] by doing nothing. In other words, Trump abandoned any arguments he may have had under the Westfall Act, deciding instead to press a different, last-ditch claim of Presidential immunity, which this Court, in its third decision in these related cases, subsequently rejected in December 2023.
In a subsequent filing, Carroll’s lawyers asked the 2nd Circuit to “resolve the Motion to Substitute in advance of the June 24 oral argument,” and the court has done so — taking the American taxpayer off the hook.
