Thread by @ZoeTillman

The 2nd Circuit is hearing arguments this morning in writer E. Jean Carroll's defamation suit against Trump, on the question of whether DOJ can take over Trump's defense.

Previously on AG Garland picking up this fight after the transition: buzzfeednews.com/article/zoetil…

This is the link to the 2nd Circuit's audio livestream, so far it's giving me an error message, hopefully it'll kick on soon (or someone who spends more time covering this court will tell me what I'm doing wrong!) ww2.ca2.uscourts.gov/court.html

Phew, it's working, they're just getting started now

https://twitter.com/ZoeTillman/status/1466783667104239617

Judge William Nardini begins by saying that they're going to start with another case, and the Carroll v. Trump case will be either 2nd or 3rd depending on the status of another case scheduled for today

While we wait, here's background on Trump's motion to amend his answer to Carroll's suit in the district court to include a counterclaim under NY's anti-SLAPP law, which was revised a year ago: bloomberg.com/news/articles/…

The docs: s3.documentcloud.org/documents/2112…

Carroll case will indeed go last before this 2nd Circuit panel, another case is being argued now after the first case concluded, so no activity to report yet

Okay, the Carroll v. Trump case is up.

DOJ attorney Mark Freeman goes first: "The former president made crude and offensive comments in response to the very serious accusations of sexual assault made by Ms. Carroll. I’m not here to defend or justify those comments..."

...Freeman continues, explaining why they're on the same side as Trump here: "I'm here because any president facing a public accusation of this kind in which the media is very interested would feel obliged to answer questions from the public, answer questions from the media"

Judge Chin (I think, the livestream isn't listing who is talking and I'm not 100% familiar with all the judges' voices) briefly asks if DOJ's position means a president or member of Congress could say anything and be protected as long as a reporter is listening

They move on quickly to an in-depth discussion of what jurisdiction's law applies to the "scope of employment" Q, and, assuming it's DC law, how local law handles the situation at hand. Judge Calabresi suggests they certify the issue to DC, Freeman is saying that's not necessary

What this is all about is the court trying to figure out what the standard is for determining if Trump's conduct fell within his "scope of employment" — which gets to the core issue of whether this is a case that DOJ can take over, or if it remains against Trump personally

Calabresi quips that he's not interested in this case being about Trump as the former president, "I’m very interested in tort law"

Calabresi is really digging into the weeds, and Nardini cuts it off, saying they've kept Freeman way past his time, and they'll give him some more time on rebuttal. Up next is Trump lawyer Alina Habba, who recently came into the case, replacing Marc Kasowitz

Habba begins by saying that Trump is "not hiding behind the shield" of the Westfall Act, they maintain that Carroll's allegation of defamation is meritless, but that their posture is "solely to protect the presidency as an institution"

Habba says their position is that regardless of where a president is geographically located at the time of an alleged tort, what that prez says or does is an act of the United States, and DC law applies re: "scope of employment" since that's where the employment status lies

They're now discussing the first part of the question, which is whether the Westfall Act applies to a president, Habba says yes

Chin: "Who is he serving when he says something like, 'she’s not my type.' Is he serving the United States of America when he makes that statement?"

Habba says yes, because he has to address it and say he didn't do it (meaning denying Carroll's sexual assault allegation)

Chin pushes on this, saying "she's not my type" goes beyond denying the allegations. Habba says Chin's question goes to content, and not context — and that what matters is, was he president and addressing the matter in that context

Calabresi back to wondering if they should certify this case to DC (the DC Court of Appeals would normally be tasked with resolving DC law), they don't know if DC would say, 'she’s not my type' is part of the job of president or whether DC would say 'she’s not my type' is not

Nardini asks Habba is there's any limit or if anything a president says is covered by the Westfall Act. Habba says the limit is an unprovoked attack on a citizen, but their position is that Carroll provoked this by going public with her allegations against Trump

Habba's response is met with skepticism about that provocation standard, Calabresi asked what case stands for that, Habba says she doesn't have one to cite

Up next is Carroll attorney Joshua Matz. He dismisses the provocation test that Habba had articulated as made up

Matz is arguing that to determine what falls within the scope of employment, there has to be an analysis of the intent — whether it was for some private reason. Calabresi is concerned about the implications, whether that means every has to go to a jury to dig into intent

Matz says it doesn't mean every case has to go to a jury, that courts have the tools to figure out if a person's intent fell within the scope of their employment

Some surreal territory, Calabresi asks a hypo about a president giving out medals, sees someone who insulted him, uses medal to choke, possibly kill that person. Outside scope of employment? Matz says likely yes if there's good reason to think it was out of of spite/malice

Matz acknowledges that the DC courts have taken a broader view of what kind of conduct by an employee falls within scope of employment (aka, putting the employer on the hook for liability), but have articulated limits to that where there's a personal motive involved

Chin asks if there would have been a problem if Trump responded with a simple denial. Matz says there wouldn't be a problem. Chin Qs how that plays out, if there's a line by line analysis of each statement. Matz says yes, but that's not an innovation and how the doctrine works

Matz says their position is that only the original Federal Tort Claims Act would potentially be at issue here (and they say it doesn't apply), and that the text of the Westfall Act, which amended the FTCA, wasn't written in a way that would apply to a president

Matz ends by arguing although DC law has been applied to interpret scope of employment broadly, it would go against "no one is above the law" if an elected official could harm someone for private reasons and then there's no remedy for a victim in the name of sovereign immunity

What Matz is referring to, and something at the core of Calabresi's Qs about whether they need more clarity from the DC Court of Appeals, is whether the fact that the defamation case would be dismissed if the US govt becomes the defendant is a consideration here

On rebuttal, Trump lawyer Alina Habba poses a hypo where Kyle Rittenhouse wants to sue Biden for defamation (more on the 2020 tweet/comments at issue: snopes.com/fact-check/kyl…), implying Biden should be able to make same arg as Trump (although Biden wasn't president at the time)

And that's a wrap on that. We don't know when the 2nd Circuit will rule.

When is saying "she's not my type" in response to a rape allegation within the scope of the president's job?

On that and other questions the 2nd Circuit considered today in the latest phase of E. Jean Carroll's defamation case against Donald Trump:
buzzfeednews.com/article/zoetil…