A judge has warned that former President Donald Trump is building a legal shield that could block him from being held accountable for inciting the Jan. 6, 2021, insurrection, pointing to the bizarre move by the Department of Justice to side with Trump in a rape defamation case last year.
The DOJ’s legal stance—that anything a president does is part of his official duties, and therefore makes him a federal employee immune to lawsuits—was widely criticized at the time. But it came up again on Tuesday, when a federal appellate judge found it necessary to issue a stark warning that obviously referred to holding Trump accountable.
“Under this logic, so long as a president looks like he is engaged in conduct that is of the kind he is expected to perform—like speaking to a reporter or attending a government meeting—he is acting in the scope of his employment. But if that were so, then the mere presence of others would neutralize whatever a president did or said, for no president could be held accountable for damage done in front of a microphone or in an official meeting—whether defaming a citizen, exposing classified national security information, or inciting a riot,” wrote Judge Denny Chin in New York City.
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“This is not, and should not be, the law,” he added.
The closing lines make clear swipes at the former president, who is under criminal investigation for mishandling top-secret government documents and separately faces civil lawsuits for telling his MAGA loyal followers—who he knew were armed with rifles—to march on the Capitol building.
“I think it’s a legitimate concern. What the judge is getting at is the very real possibility of unforeseen consequences,” said Vermont Law School professor Jared Carter.
Chin was the lone voice of dissent on a three-judge panel at the Second Circuit Court of Appeals in New York City, which reviewed a legal dispute between Trump and the longtime Elle magazine advice columnist E. Jean Carroll. The two other appellate judges handed Trump a temporary victory by overturning a district court’s ruling and taking a key step toward extending Trump legal immunity normally reserved for low-level federal employees.
The question is whether Trump holds any personal responsibility for what he did to defend himself after Carroll accused him of raping her. In June 2019, New York magazine published an excerpt of Carroll’s book, where she accused Trump of raping her inside a Bergdorf Goodman department store dressing room sometime around 1995. Trump denied ever meeting Carroll and later told The Hill: “Number one, she’s not my type. Number two, it never happened.” Carroll sued him for defamation.
The 2019 case has proceeded in slow motion, at first because Trump was still in office, then later because Trump used his go-to coup lawyer at the Justice Department to defend him in court—having taxpayers foot the bill.
E. Jean Carroll speaks onstage during the How to Write Your Own Life panel at the 2019 Glamour Women of the Year Summit at Alice Tully Hall on Nov. 10, 2019, in New York City.
Ilya S. Savenok/Getty for GlamourThe public largely expected that to change when Trump lost the election and the Biden administration changed out DOJ leadership. But the Justice Department made the shocking decision last year to keep defending Trump, arguing that he can keep leaning on the executive power he once had.
These arguments persuaded the two-judge majority on the Second Circuit appellate court, who wrote that Trump could get the protections afforded federal workers under the 1988 Westfall Act because he was just like your average Joe.
“As Trump points out in his brief, the president is a government employee in the most basic sense of the term: He renders service to his employer, the United States government, in exchange for a salary and other job-related benefits,” wrote Judges Guido Calabresi and William J. Nardini.
Trump lawyer Alina Habba issued a statement afterward, saying, “This decision will protect the ability of all future presidents to effectively govern without hindrance.”
But the appellate decision has now punted a second question to the District of Columbia Court of Appeals, asking them to determine whether his statements about Carroll were “within the scope of his employment as president of the United States.”
The Justice Department is already on record with its stance that Trump’s actions were well within his employment—despite the fact that he was referring to a personal matter involving a potential sexual assault that happened decades before he ever ran for president. It gives Trump yet another defensive strategy to employ against the various civil lawsuits seeking to make him pay for sending rioters to attack the Capitol, where they hurt police officers and wrecked portions of the historic building.
“This is a win for Trump, no doubt. Is he going to use it in civil and criminal matters? One hundred percent,” said John Pavia, who teaches a law school class at Quinnipiac University that focuses on questionable conduct by high-ranking government officials.
Still, Pavia doubts that the defense will actually work against Jan. 6 cases. He said the three civil cases against Trump for inciting a riot are distinct enough from the Carroll case that the Second Circuit’s ruling shouldn’t hold water.
“I don’t think it’s going to have the power of a landmark decision that’s going to somehow sway or have influence on everything else going on,” he told The Daily Beast.
But if the D.C. appellate court goes Trump’s way as well, his attorneys are more likely to use this case to raise the defense invoked by another rally speaker who riled up the mob and whipped up the frenzy that day, Rep. Mo Brooks (R-AL). Brooks managed to get himself off the hook in the three lawsuits seeking to punish the people who drove insurrectionists over the edge, and Trump is likely to try the same with these new decision, legal scholars said.
In March, U.S. District Judge Amit P. Mehta in Washington dismissed Brooks as a defendant in the insurrection lawsuit filed by Rep. Eric Swalwell (D-CA). Phil Andonian, one of the attorneys on Swalwell’s legal team, acknowledged Chin’s concerns but said it’s too early to say the DOJ’s decision to defend the sanctity of the Trump presidency is “imperiling the Jan 6 lawsuits.”
“It’s apples and oranges… whatever he was doing in Carroll was fundamentally different than what he was doing on Jan. 6 in the lead up to the attack on the Capitol,” Andonian told The Daily Beast. “What we’re alleging in our case is fundamentally different than [Trump] saying something in response to an official interview. Our central point is that what Trump did was unleash a mob on Congress… and launching an attack on a co-equal branch of government is certainly not within the ambit of presidential authority.”
Carter, the professor in Vermont, cautioned that the appellate decision Trump’s team is celebrating may not be the gift it appears to be. He noted that the decision that formally finds that Trump was an employee was also littered with references that his actions actually don’t qualify as part of his employment. For example, Judge Calabresi’s concurrence called this a “rare” case about “employee misbehavior.”
“They provide a roadmap that the D.C. circuit can use to determine this was outside the… scope of his employment,” Carter told The Daily Beast.
This legal fight doesn’t necessarily doom Carroll’s case against Trump, though. Last week, her attorney revealed in court letters that they’re preparing to launch a new lawsuit under New York’s new sexual assault survivors law—one that targets Trump the same way victims go after Catholic priests accused of molesting children.
