If President Donald Trump and the Justice Department have their way, presidents will be legally permitted to defame anyone during their four (or eight) years in office.
On Wednesday, a federal judge in Manhattan will hear arguments on the Justice Department’s motion to substitute the United States for Trump as the defendant in a defamation suit. The Justice Department filed a reply brief Monday, arguing that Trump’s conduct occurred within the scope of his employment because federal elected officials have a “responsibility to communicate regarding matters of concern or interest to their constituents.”
The lawsuit was filed by journalist E. Jean Carroll, who alleged in a 2019 book that Trump raped her in the 1990s in the dressing room of a New York department store. Trump denied the allegations, adding that Carroll had falsely accused other men of rape, that she had a political motive, that he had never met her, that she had fabricated the allegations to sell books and that she was “not my type.” Carroll claimed that Trump defamed her in 11 specific statements.
The key issue before the judge Wednesday is whether Trump acted within the scope of his federal employment when he made the allegedly slanderous comments. The law permits the Justice Department to remove tort cases from state court to federal court and to substitute the United States as the defendant when a federal employee is sued for acts committed within the scope of his employment. For example, in a case alleging negligence against a national park ranger who was involved in an accident while on duty in his government vehicle, the Justice Department would certify that the employee was acting in the scope of his employment at the time of the accident and would move to substitute the United States as the defendant. If the court were to agree, then the United States would assume any liability, and taxpayers would cover the legal fees and any money damages for the plaintiff.
In this case, the consequences of the decision about scope of employment are huge. That’s because the United States enjoys sovereign immunity for defamation claims. Under the Federal Tort Claims Act, the federal government has consented to be sued for certain torts, such as negligence, but not for defamation. That means that if the court agrees that Trump was acting within the scope of his employment and permits the United States to be substituted as the defendant, then Carroll’s lawsuit will be dismissed altogether.
Whether an act occurred within the scope of a person’s employment depends on two factors. First, the court will look at whether the employee was acting to promote the employer’s interest. Second, the court will consider whether the act was the type of conduct the employee was hired to perform. It can hardly be said that Trump’s comments about Carroll advanced the interests of the United States or that making allegedly slanderous remarks is the type of conduct that Trump was elected to perform. In its brief, the Justice Department argued that the court should focus on Trump’s conduct in communicating and not the content of Trump’s statements. Denying allegations that a federal elected official is unfit to serve, the Justice Department argued, is within the scope of that official’s employment. And because a president is always on duty, then every statement is covered. But even if this argument has any merit, the facts here present more than just a denial. Trump didn’t simply rebut the accusations. He went out of his way to add insult to injury, accusing Carroll of fabricating the allegations to sell books, falsely accusing other men of rape and having a political agenda, among other things. If the court finds that any one of those statements was made outside the scope of Trump’s employment, then it will deny the motion to substitute the United States as the defendant. Such a result would permit a president to defame his political opponents without any legal limitations. The court should also consider the long-term implications of the Justice Department’s arguments. If a president acts within the scope of his employment whenever he communicates, then he can never be sued for any statement, and all future presidents would effectively be immune from claims of defamation. To find in the president’s favor on this motion would give him and all future presidents carte blanche not only to deny allegations against them, but also to make their own false allegations against others without consequence. Such a result would permit a president to defame his political opponents without any legal limitations. In a re-election campaign, a president would be permitted to defame his opponent, who would lack the legal right to reciprocate. The president already has a bully pulpit. We don’t need to elevate it above the laws that apply to everyone else.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
