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To answer this question, a little legal background is in order. 1/ https://twitter.com/Stoneglo1/status/1303523078559936513
Carroll brought a state tort action against Trump, claiming he defamed her. Defamation is a matter of state law, heard in state courts, in this case in NY. 2/
Trump wants out of NY state court. So, DOJ has used a mechanism made available by something called the Westfall Act, which says that tort actions against fed employees must be brought against the U.S. govt not the employee if the employee was acting within scope of employment. 3/
The U.S. government may always transfer cases against it to federal district court. So, by substituting the government for Trump, DOJ can remove Carroll’s defamation suit from NY court (case still governed by NY state law). 4/
The federal district court has the authority to review DOJ’s determination that a fed employee was acting within scope of employment when s/he committed allegedly tortious acts. Tort plaintiff has the burden of proof to show employee was not acting within scope of employment. 5/
So, Carroll can and probably will seek to have the scope of employment certification issued by DOJ tossed by the federal district court. New York state tort law will be applied to determine whether Trump was acting within scope of employment. 6/
NY state law requires that an employee be acting in interests of employer for employee to be acting within scope of employment. 7/
I would argue that Trump commenting on Carroll’s veracity has nothing to do with the interests of the federal government or the American people, the party the government is meant to serve. But now we run up against Barr’s commitment to the dangerous “unitary executive” theory. 8/
I wrote about Barr and his extremist views about the power of the executive back in May, 2019. https://slate.com/news-and-politics/2019/05/nancy-pelosi-trump-barr-executive-privilege-abuse-power.html 9/
Basically, Barr holds the view that anything the president does while in office is an action that serves the interests of government. This is why he believes he can defend the certification that Trump acted within scope of employment when Trump slurred Carroll. 10/
It is possible, therefore, that an effort by Carroll to litigate the certification issue will lead to a decision about the limits of the identification of the President’s interests with the governments. 11/11
