Thread by @jentaub

💯 Getting ready for the appellate argument in the Second Circuit in the @ejeancarroll v. Donald J. Trump defamation case. Gaveled in at 10:05 a.m.

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Judge Nardini is "switching up the calendar" and instead of starting with E. Jean's case, hearing two others first. I'm thinking we will get to that by around 10:30.

I'll still be warming up by tweeting about these other matters a bit.

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Oh, never mind. This is too boring.

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We are still on the first argument . . . .I'll chime in again

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We have move onto our second case.

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Okay, hang in there. We start in 5 minutes.

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🔥Here we go! It's time. Let's do this.

E. Jean Carroll v. Donald J. Trump and United States of America.

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Order will be

Mark Freeman for DOJ
Alina Abba for Trump
Joshua Matz for E. Jean

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Freeman sounds nervous. He begins by saying "I'm not hear to defend or justify those comments" about E. Jean.

He says Trump "felt obliged" to answer questions from the public.

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Nice. Judge Chin said is it the government's position that a president or member of congress can say whatever they want?

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Calibresi jumps in "what law decides whether" it's in the scope of employment. Is it the law of District of Columbia itself.

Calibresi says "I'd like to know" and it wasn't in briefs.

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Freeman agrees that it is the choice of laws rules of the District of Columbia, the District analyzes scope of employment by looking at the law where the employment relationship exists. Guido Calibresi says he does think that's probably right.

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Calibresi wants to know what Freeman thinks is the law of the District. Arguing with Freeman and says the Bellinger case is not relevant because it is the federal court "guessing" what the law of the district is.

So, why not certify the question to the District of Columbia

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Freeman does not want to certify the question. Says you can look at the restatement of the law of agency (which is a summary in a sense of the common law, but is not binding precedent).

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Calibresi says D.C. cites Harper and James (torts treatise).

What would DC or NY law say. . .and there is no law on how the states would treat scope of employment in a situation when Westfall Act would give immunity . . .

This is a VERY complex.

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Judge Nardini say this is going to go beyond the allotted time. In his words we are going to keep you "beyond your red dot"

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This is shaking out to be a fascinating, complex case involving the Erie Doctrine and other interesting Civil Procedure matters. I cannot wait to teach this next year in Civ Pro.

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Judge Calibresi: "How does the state read 'scope' in all of the circumstances that are" before it.

"The matter would be easy if it were negligence. . . but that isn't so with intentional torts."

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Now Chin jumps in. Mentions the Majano case in which an independent trespass might not be within the scope. This is a case mentioned throughout E. Jean's brief.

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Freeman said Majano asks whether the use of violence was foreseeable to the employer in the first place. . .

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Judge Calibresi: "I am not interested if this is the former president Trump, I'm very interested in tort law."

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Where Calibresi is headed is having the second circuit certify the question of whether this behavior is within the scope of employment or not. Then it would be up to the District of Columbia court to decide whether to certify the question.

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Important thing to know is that if the court were to say that defamation is within the scope of Trump's employment, then it would be covered under federal law and due to carveout for liability the E. Jean case against Trump would be dismissed.

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By the way Judge Calibresi is Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale. Until a year ago, he taught torts. . .

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"Fortunately for you have somebody" here who spent 62 years teaching torts.

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Now it's Attorney Alina Habba who represents Trump.

My client "is not hiding behind the shield of the Westfall Act." She says "this is solely to protect the presidency as an institution.

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Nardini jumps in and says he understands this would apply to all former and future presidents.

He brings the conversation back to scope of employment. . .He said the outcome of the case would vary depending on where the action transpired.

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Chin asks her if her position that the laws of the states don't matter.

She says the law that governs the scope of employment would be the D.C. law, because the president works in D.C.

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First prong of Westfall is whether president is a federal employee. She says yes.

Chin jumps in and says "it doesn't mean ever single employee who received a paycheck."

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Habba brings up the Hatch Act as an example

I just laughed/swore about that. Really. They now think the Hatch Act applies

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Calibresi is parsing the word "including" as expansive and when the "executive branch" was in the Westfall Act. He said there's a question of whether the act amended the Federal Tort Claim Act.

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She said the president is part of the executive branch, she said.

Calibresi said hypothetical, president is golfing with the President of France and negligently hits the ball an injures someone then government pays.

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And yet, Calibresi made the opposing argument. But, the Westfall Act purpose is that the government can discipline the employee. But when it comes to a President, he cannot be discipline

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"Who is he serving when he says, she's not my type." Chin says. It's one thing if he said "I did not do it."
But did he need to say, "she's not my type?"

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Calibresi is saying this is not a conversation to have with judge Chin, but this up to D.C. as to whether saying "she's not my type" is within the scope of employment.

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Nardini says assuming are "squarely defamatory" are you arguing that doesn't matter. Is this a categorical position. Is what you are saying that everything the President says from being sworn in throughout term of office is within the scope.

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WOW

She said, no. She has a limiting principle. Everything president says is within the scope of presidency other than an unprovoked attack on a citizen

One of the judges is incredulous. Your test is "provocation."

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"What DC case do you cite me?" Calibresi asks.

Habba said she doesn't have case but thought her opinion was being asked.

Nardini said, "I am not asking you what you feel"

Ouch

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Trump's lawyer is going down in flames.

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Now it's Joshua Matz for E. Jean Carroll.

"We do not believe Mr. Trump is covered by the FTCA" but he is focusing on scope of employment.

Argument is based on three premises

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1. A person acts outside of their scope if they act in furtherance of private motives like revenge (and is too attenuated.

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2. I think his second premise was that he acted with a private motive not actuated by an appropriate purpose

3. Third premise is that Trump's conduct under DC law is outside the scope of employment

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Folks, Joshua Matz is brilliant. He did his homework, he is arguing very well and is hitting it out of the park.

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Another fascinating issue that Calibresi is bringing to light. Under D.C. law is scope of employment a matter of fact (which would always go to a jury) as there is a determination of defendant's state of mind.

Matz says the jury would not need to hear every case

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Calibresi gets into the jurisprudential weeds about some "error" that happened in tort law dating back to 1900 about the distinction between "law of the case" and "law of trespass.

I have to look this up for later. . .I don't teach torts.

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There is now a conversation about whether the test for scope of employment need to have an intent to benefit the employer.

Calibresi brings up example of cases involving bill collectors who beat up debtors and that was found to be within scope.

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In those cases that would be good for plaintiffs because the employer could be sued for the battery.

Here I must note this is different, though, because if there is respondeat superior liability for Trump's comments, the case gets dismissed. There is no remedy for her.

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This is definitely moving toward certification to D.C. court.

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Acting for purpose of personal animus, even where the job provides the opportunity, can still be OUTSIDE the scope of employment.

E.g. president pinning medals on people, sees someone he does not like and says something to defame them. That would be outside

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Hard question from Judge Calibresi about line drawing.

Matz said he would not have had a problem if he merely denied.

"This is classic respondeat superior doctrine." Said he is not asking for an innovation.

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Nardini wants to go back to Judge Chin's question. What if the statement of a mere denial not "equally defamatory".

Matz said question is whether Mr. Trump acted in furtherance of private motives. A mere denial would not necessarily be defamatory.

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Nardini is trying to find the line.

Matz said it's the "private motive" to look for.

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Calibresi is struggling with finding the line between the type of comment that would show private motive etc. and thus outside of scope.

Good. Matz gives the full context. Several days of defamatory attacks.

So IMPORTANT to put this pattern and repeated attack.

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In my view, this is very workable. It's not a president speaking out of turn in the heat of the moment. It was deliberate and voluntary. He reached out to press etc.

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We are now onto another very complex issue. This time it's about statutory interpretation. All about the interpretation of the word "include" as to whether it's a limiting type of word to be illustrative, or if it is expansive.

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Matz's position is that the FTCA (the Federal Tort Claims Act) does not cover the president.

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Importantly the law does not say "executive branch." The text refers to two branches (legislative and judicial) and then lower category of exec branch, not entire branch.

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Matz says under DC law when a person acts with private motives, then action can be outside scope of employment. In addition, when it's a federal official denying a remedy is not what the law should be. . .

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Freeman is up for his rebuttal and before he can begin to speak we have Chin asking whether Congress intended for the Federal Tort Claims Act should apply even to the President.

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Freeman said the Westfall Act said tells us what the FTCA means and that "includes" is an open word because in other definitions Congress used the word "means".

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Freeman is reading from the restatement of agency and says what he thinks is in scope.

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Trump's lawyer "this was put in the press's purview by Miss Carroll." Said he was on the defensive.

Calibresi said, "I'd like to see a case."

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That's a wrap. Court adjourned. Gavel. 11:58 a.m.

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