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Just getting to read the Federal Tort Claims Act.
I had thought perhaps it provided some special definition of "scope of his office or employment" that would make DOJ's taking on the Carroll v. Trump case more plausible than it seemed from news reports.
I had thought perhaps it provided some special definition of "scope of his office or employment" that would make DOJ's taking on the Carroll v. Trump case more plausible than it seemed from news reports.
Nope. There's nothing that does.
"Scope of ... office or employment" is undefined for relevant purposes.
The certification of the DOJ lawyer supporting the assertion that Trump's statements were within the "scope" of his office are conclusory and unsupported by reasoning.
"Scope of ... office or employment" is undefined for relevant purposes.
The certification of the DOJ lawyer supporting the assertion that Trump's statements were within the "scope" of his office are conclusory and unsupported by reasoning.
"Scope of employment" is a traditional term used in the common law of agency law -- the law of agents, such as employees, and when employee actions make employers' liable.
https://www.law.cornell.edu/wex/scope_of_employment
https://www.law.cornell.edu/wex/scope_of_employment
Act withing "scope of employment" render an employer liable for the negligence of an employee. The fancy Latin phrase is "respondeat superior." So if a gas station attendant negligently blows up a customer's car, the gas station business owes the customer.
But if a gas station employee is driving to Fenway to see the Red Sox and runs over a Yankee fan by accident, the gas station doesn't owe the Yankee fan any damages. That was after hours, off premises, unrelated to working at the gas station.
Here, Trump issued statements and was then asked by journalists about accusations that he had raped Jean Carroll before he became president. It's true he was president when he denied raping her, and was asked about her while "working" as president, during normal business hours.
But he did not say anything about his actions as president, or during his presidency, and Carroll's accusations had nothing to do with any actions of his as president.
The only theory that I can think of -- and the DOJ has advanced no theory so far that I'm aware of -- is that anything a sitting president says that exposes him to liability for defamation is within the scope, since he's always on the job.
That would make the phrase "scope of office or employment" essentially meaningless for purposes of defamation law. There is nothing in the Federal Tort Claims Act's text that supports such a reading. There is nothing in the FTCA that distinguishes defamation from other torts.
But there are much more intuitive approaches to applying "scope" in this setting, that would preserve some legal meaning for it. For example, it would be within scope if the alleged defamation was about -- or itself was -- a government act.
If, for example, in denouncing a proposal by Chuck Schumer to modify a bill Trump proposed, Trump said Schumer was a liar. That would be within the "scope" of Trump's office, even if it was defamatory. It would be then covered by the FTCA, DOJ was defend, in federal court.
Or, stretching a bit, if Trump was asked "how can you defend your administration's record on women's rights when you're being accused of rape," then (arguably) a response denying the rape might be within "scope," since the accusation is linked to a question about the presidency.
But to take the position that anything and everything a president says while in office is within "scope" simply because the presidency is inherently a 24/7 job and everything he says is politicizable is to render the phrase "scope" meaningless as applied to the president.
Congress easily could have passed a statute like the FTCA that accomplishes that result by specifying that all tort claims against the president are covered. But Congress didn't do that.
The DOJ official who certified under the FTCA - Jeffrey Clark - has no experience evident from his CV giving him special insight on "scope."
His CV at DOJ suggests he's been an environmental lawyer working at DOJ for two years under Trump, and Kirkland & Ellis, before stepping into his current role. https://www.justice.gov/enrd/jeffrey-bossert-clark
Without more, the DOJ's position appears to me to be borderline frivolous, obviously motiviated to delay discovery (Trump's previously ordered deposition) until after the election.
If I were Carroll's lawyers (again, as advised -- perhaps there's something I don't know that is relevant) -- I'd move for sanctions and seek an expedited remand to state court.
Addendum:
The one case closest on point -- Williams v. US -- analyzes the phrase "scope of ... office or employment" as if the phrase was the same as the agency law concept I sketch above.
The one case closest on point -- Williams v. US -- analyzes the phrase "scope of ... office or employment" as if the phrase was the same as the agency law concept I sketch above.
In that case, a Congressman was alleged to have defamed someone during a press interview in the Congressman's DC office, by a Houston, Texas television station, concerning the status of an appropriations bill to restore the Battleship Texas.
The alleged defamation concerned lobbying fees that the plaintiff had received during the course of lobbying for the bill on which the Congressman -- who chaired the committee with jurisdiction over the matter -- was commenting.
The linkage between an official act and the alleged defamation was so clear the court was confident it was covered by the FTCA.
The court also in that case held that the DOJ's certification that the FTCA applies to a claim is not conclusive, and that the court's have a role in deciding whether the certification is valid.
The court specifically cited to state tort and agency law to determine how to interpret the FTCA.
The general principle relied on was: "the conduct must be of the same general nature as that authorized or incidental to the conduct authorized."
Here, it seems clear that the president is not officially authorized by the Constitution or any statute of which I'm aware to engage in intentional torts, or to speak on behalf of the US (true or false) about his conduct prior to becoming president.
