By Jonathan Stempel
(Reuters) -A Washington, D.C., appeals court on Tuesday considered whether Donald Trump should be immune from author E. Jean Carroll’s defamation lawsuit stemming from the former U.S. president’s 2019 denial that he raped her.
An eight-judge panel of the district’s highest local court is expected to decide whether Trump was acting as president when, in response to a reporter’s question, he accused the former Elle magazine columnist of lying about the alleged mid-1990s encounter.
During more than 2-1/2 hours of oral arguments, Trump’s lawyer Alina Habba said there was great public interest in letting presidents “deal fearlessly with the American people” when fielding questions from reporters and constituents, entitling Trump to broad immunity covering Carroll’s claim.
Joshua Matz, a lawyer for Carroll, countered that Trump has a long history of making “highly personal attacks on women who credibly accuse him of having engaged in sexual misconduct. … That tends to suggest that the motivation is not really anything relating to their job. That’s just how they roll.”
Carroll described her alleged encounter with Trump in a June 2019 New York magazine excerpt from her memoir, saying Trump raped her in a Bergdorf Goodman department store dressing room in Manhattan.
Trump later told a reporter at the White House that he did not know Carroll, that “she’s not my type,” and that she had concocted the rape claim to sell her book. He has also denied sexual misconduct claims by several other women.
TWO LAWSUITS
Last September, a federal appeals court in Manhattan asked the Washington court to weigh in on whether under District of Columbia law Trump had spoken within the scope of his role as president, or in his personal capacity as Carroll argued.
If Carroll wins, she can further pursue the first of her two defamation cases against Trump in Manhattan federal court, with a trial scheduled for April 10.
A victory for Trump would likely end that lawsuit, and could provide broad immunity to presidents from defamation claims over statements they make while in office.
The Biden administration supported Trump’s immunity claim, while criticizing his “crude and offensive” comments.
Regardless of the outcome, Carroll could still pursue her second lawsuit, which says Trump defamed her last October – after he left the White House – by again denying the rape happened.
That lawsuit also includes a battery claim under New York’s Adult Survivors Act, a new law that lets adults sue their alleged attackers even if statutes of limitations have expired.
Carroll’s case is one of many legal clouds over Trump as he runs again for the White House in 2024.
TRUMP’S MOTIVATIONS
During Tuesday’s arguments, several judges expressed concern they had no factual record about what motivated Trump to speak, and questioned where to draw the line when presidents speak about public matters.
Judge Joshua Deahl asked Mark Freeman, a Department of Justice lawyer, whether Trump would have been acting as president if he brushed off advisers who recommended he ignore Carroll, and instead decided to “take her down. That’s the way I live my life.”
Freeman said no, if Trump were acting purely for personal reasons.
But he added: “It would be exceptionally rare to come to that conclusion with respect to the president of the United States answering a question from a reporter at the White House.”
Habba countered that Trump would be shielded if he spoke with even the slightest motivation to serve the people.
Judge Catharine Easterly asked her: “If the motivation is 99.99% personal and 0.01% for the employer, does that mean you think he acted in the scope of his employment?”
“I do,” Habba replied.
The appeals court did not say when it will rule.
The case is Trump et al v. Carroll, District of Columbia Court of Appeals, No. 22-SP-0745.
(Reporting by Jonathan Stempel in New York; Editing by Howard Goller)
