Judge Says Justice Department Cannot Defend Trump in E. Jean Carroll Rape Defamation Suit

Updated Oct. 27 at 11:45 a.m. PT.

Bill Barr’s Justice Department attempted (unsuccessfully) to argue in court that those harmed by Trump’s lies—such as rape survivor E. Jean Carroll—should not be able to sue him for the harm he causes.

E Jean Carroll in New York in April 2006. (Wikimedia Commons)

We all know that Trump lies. According to the fact checker staff of the Washington Post, he has made over 22,000 false or misleading claims since taking office four years ago. Trump’s lies hurt people generally—but what about when his lies target individuals and cause them harm? Can they sue him?  

On Tuesday, U.S. District Court Judge Lewis Kaplan answered that question: Yes.

In his ruling, Judge Kaplan said the Justice Department cannot shield Trump from a libel lawsuit filed by E. Jean Carroll, a journalist and writer who alleges Trump raped her in a New York City Bergdorf Goodman department store dressing room in the mid-1990s.

When Trump first learned of the allegations in June 2019, he denied Carroll’s claims, saying, “Number one, she’s not my type. Number two, it never happened.”

He then said Carroll was lying about the rape in order to increase her books sales, carry out a political agenda, advance a conspiracy with the Democratic Party, and make money. He also suggested she had falsely accused other men of rape. 

In November of 2019, Carroll responded to Trump’s denial with a libel lawsuit—which the Justice Department sought to block—claiming the president’s statements branding her a liar damaged her reputation.

Justice Department Sought Immunity for Trump on Lies about E. Jean Carroll Rape

Bill Barr’s Justice Department attempted to argue in court that those harmed by Trump’s lies should not be able to sue him for the harm he causes them, asking a New York court to declare Trump immune from such lawsuits in civil courts.

In the complaint against Trump, Carroll alleges he “smeared her integrity, honesty, and dignity—all in the national press.” She notes he had used these tactics before when other women had accused him of grabbing, groping and raping them. And she says the defamatory statements injured her, inflicting emotional pain and suffering, damage to her reputation, and substantial professional harm.

“Nobody in this nation is above the law. Nobody is entitled to conceal acts of sexual assault behind a wall of defamatory falsehoods and deflections. The rape of a woman is a violent crime; compounding that crime with acts of malicious libel is abhorrent,” says Carroll in her lawsuit.

The Justice Department disagreed, and attempted to intervene in Carroll’s private lawsuit, arguing Trump can’t be sued for his statements about Carroll because they were “an official act.”

“Given the president’s position in our constitutional structure, his role in communicating with the public is especially significant,” says the Justice Department, arguing the alleged defamation “fell within the scope of his employment” and related to his “his fitness for office.”

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“There is not a single person in the United States—not the president and not anyone else—whose job description includes slandering women they sexually assaulted,” responded Carroll’s lawyers in a brief to the New York court.

Women’s March 2018 in Vancouver, Canada. (Sally T. Buck / Flickr)

Normally, if someone defames or slanders another person, they can be sued in court and made to compensate their victim for the harm the defamation causes to their reputation.

Government employees, however, generally have immunity from most defamation claims related to activities that occur as part of their jobs. Barr’s Justice Department tried to argue Trump’s allegedly defamatory statements were part of Trump’s job—“an official act”—so he is immune from responsibility for the harm caused by his lies.

But Judge Kaplan said Tuesday the government was wrong on that: The law applies only to federal employees, a description that does not include the president, who is in a different legal status.

Last summer, the Supreme Court rejected a similar immunity claim, but in the criminal context. Trump had argued that he could not be criminally investigated in New York. 

In oral arguments before the Second Circuit Court of Appeals on the Manhattan DA attempts to subpoena Trump’s tax returns and financial records, Trump’s attorney William Consovoy had argued Trump could not be criminally investigated or prosecuted in state court even if he were to shoot someone on Fifth Avenue.

The question arose because of Trump’s claim in 2016, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.” The United States Supreme Court disagreed, ruling that the president was not immune from state criminal investigations.

In her complaint, Carroll says the #MeToo uprising—and the successful prosecution of Harvey Weinstein—inspired her to speak out about Trump sexually assaulting her. She hopes “to demonstrate that a man as powerful as Trump can be held accountable under the law.”

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Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.