The Justice Department last month moved to take the place of the President in the litigation under the Westfall Act, which it said applied because Trump’s denials about the alleged assault were in response to reporters’ questions in June 2019 while he was President.
“There is no merit to the Justice Department’s certification that Trump acted within the scope of his employment as President in defaming Carroll,” Carroll’s attorney said in a court filing on Monday. “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,” the filing said.
Carroll’s lawyers said that the Westfall Act doesn’t cover the President because he is not an employee of executive-level departments and that he was not acting in his official duties when he made his allegedly defamatory remarks.
“If accepted, the Justice Department’s extreme position would distort the law and dishonor the Office of the Presidency,” Carroll’s lawyers’ wrote in the filing. The lawyers said if the judge doesn’t deny the Justice Department’s motion then they are seeking a hearing to determine whether Trump was acting in official duties when he allegedly defamed Carroll.
CNN has reached out to the Justice Department for comment. The DOJ has until October 19 to reply to Carroll’s legal argument, making it highly unlikely the litigation would be resolved or any evidence obtained before Election Day.
Last month, Attorney General William Barr confirmed that the White House asked the Justice Department to take over the case. The request could further delay the case or kill it entirely because the Justice Department can’t be sued for defamation, CNN legal analyst and University of Texas law school professor Steve Vladeck has said.
Carroll sued Trump in state court in November 2019, accusing him of defamation when, among other statements, he denied her allegations of assault in a dressing room at Bergdorf Goodman, a New York department store, in the mid-1990s.
Trump’s private attorneys challenged the lawsuit, and in August, a state trial court judge ruled that the lawsuit could proceed. Carroll’s lawyers had already filed motions indicating they wanted to obtain a sample of DNA from the President to compare with DNA of an unidentified male that was obtained from the dress Carroll says she wore the day of the alleged attack. Her lawyers also said they would seek to depose Trump under oath.
On the date of the deadline for Trump to file an appeal of the state court decision, the Justice Department filed its motion in federal court seeking to substitute itself for the President.