Defamation / Reputation
Johnson v. Steele
Closed Contracts Expression
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The US District Court for the Southern District of New York found that the United States (US) could not substitute itself for the President of the US as a defendant in a case where President Trump was sued for allegedly defamatory remarks he made while president. The case concerned statements President Trump made in response to accusations by Ms Carroll that he sexually assaulted her before he was president in the 1990s. Following those statements, Ms Carroll sued the President in his personal capacity for defamation. In the course of the proceedings, the Attorney General of the US certified the removal of the case from state court to federal court on the basis that the US was substituting itself for the President as a defendant under the Westfall Act. The government argued that President Trump was an employee of the US and his allegedly defamatory remarks were within the scope of his employment. Judge Kaplan of the US District Court held that the motion to substitute was denied. He concluded that President Trump was not an employee within the meaning of the statutory framework because the text signified that presidents are not included within the definition of employee. Further, he contended that the statements concerning Ms Carroll were not within the scope of the President’s employment because they did not satisfy the law of the relevant jurisdiction, Washington D.C.
The plaintiff in this case is E. Jean Carroll. She published a book excerpt in June 2019 detailing that businessman Donald J. Trump raped her in a dressing room of the Bergdorf Goodman department store in Manhattan in the 1990s. Ms Carroll asserts she informed two friends about the incident at the time, but had remained private for many years on the matter. Quickly following the publication, Mr Trump – then president – informed the press that Ms Carroll’s account was made-up. He called her a liar and claimed he never met her.
On November 4, 2019, Ms Carroll sued Mr Trump in his personal capacity in New York State court, arguing that his statements injured her reputation and she was entitled to damages. Specifically, his statements were defamatory – libelous and slanderous. The question was whether Mr Trump in fact raped Ms Carroll since it was “the heart of [the] lawsuit” since the truth or falsity of Mr Trump’s statements could have been dispositive of the case.
For almost a year, the lawsuit continued in state court as an ordinary defamation case where Mr Trump was defending himself as a private individual. On September 8, 2020, the Director of the Torts Branch of the Civil Division of the US Department of Justice certified, on behalf of the Attorney General, that Mr Trump was acting within the scope of his office as President of the US during the alleged conduct. The case was “removed” from the state court to federal court. Citing the Westfall Act, the government aimed to substitute the US for President Trump as the defendant, reasoning that Ms Carroll’s lawsuit was against the US because she sued an “employee” of the US for actions in the scope of his employment.
While the US is a sovereign nation that holds sovereign immunity, it can be sued for money damages where it explicitly agrees to be sued. Such agreement can be found in a statute called the Federal Tort Claims Act (FTCA) and the Westfall Act. The FTCA allows a person injured by an “employee of the Government” who is “acting within the scope of his office or employment” [p. 5] to sue the US for tort damages if the US would be liable as an employer under the law of the state where the act or omission transpired. In conjunction, the Westfall Act aims “to relieve covered employees from the cost and effort of defending [a] lawsuit, and to place those burdens on the Government’s shoulders.” [p. 6] It essentially prohibits tort claims against government employees who are acting within the scope of their employment and provides plaintiffs with the remedy of suing the US under the FTCA.
Since this action was pending in state court, the Westfall Act enabled the action to move to federal court. Thus, the Attorney General was permitted to issue a certification to remove it. However, the Attorney General’s certification is only conclusive in terms of removal and, thus, only affects the change of court which allows petitioners to object to the certification in the District Court.
Hence, the District Court sought to ascertain whether the President was subject to the statute and whether his actions were within the scope of his federal employment.
US District Court Judge Lewis Kaplan sought to determine whether the government could substitute itself for President Trump as the defendant by assessing whether the Attorney General’s certification that President Trump was an employee of the government was correct. Specifically, the Court divided this point into two sub-issues: whether the President of the US was an “employee of the Government” and, if so, whether President Trump acted within the scope of his employment when he made the allegedly defamatory remarks.
Regarding the first issue, the Court turned to the statutory framework governing governmental employees and their substitution. “Employee of the Government” is defined under Section 2671 of the FTCA. According to the plain language of the definition, there were five categories for government personnel, and the Court deemed only one potentially applicable to the case: “officers or employees of any federal agency”. While the president is a “constitutional officer” [p. 17], Section 2671 only mentioned “officers…of any federal agency” [p. 17].
“Federal agency” is defined to include a whole host of departments, branches, and establishments, but does not encompass the executive branch in entirety. Other references to “federal agency” in the Act suggested the same. The statutes also offered multiple clarifications that “federal agency” did not refer to “the executive branch as a whole or to any particular unit of the executive branch of which the president is an ‘officer’” [p. 20]. Moreover, the government had not attempted to identify any federal agency where the president leads.
Further consideration was given to the term “independent establishments”. It was used and defined in other legislation that was instructive in how Congress understood the term, and, again, the definition did not apply to the executive branch. The government did not identify any element of the US where the president was an officer or employee in accordance with the phrase “independent establishments.”
Furthermore, the Court proposed that the context of the Westfall Act countered the government’s argument. Referencing Nixon v. Fitzgerald 457 U.S. 731 (1982), the Court noted that six years prior to Westfall v. Erwin 484 U.S. 292 (1988) (which was a precursor to the Act), the US Supreme Court decided that the president is “entitled to absolute immunity from damages liability predicated on his official acts” [p. 25]. Therefore, Westfall did not refer to the president when it held that federal officials were not immune from state law tort liability. Likewise, the US Supreme Court later observed that the Westfall Act was created to simply return federal employees to their status pre-Westfall, not to extend such protections to the president.
Lastly, the Court rejected the view, arguendo, that the statutes were merely silent on whether they could apply to the president. It argued that this would have provided an additional reason that the president was excluded from the scope of the statutes. Referencing Franklin v. Massachusetts 505 U.S. 788 (1992), the Court highlighted a point of statutory interpretation: that courts were prohibited from presuming that statutes subjected “the president’s performance of his statutory duties” [p. 27] to review when they are actually silent on the matter. In other words, the Court could not deem that the FTCA applied to the president without an “express statement by Congress” [p. 27] because such would contravene Franklin.
Furthermore, the Court noted that the government’s argument insinuated that the FTCA authorizes injured plaintiffs to sue the US for damages when the president engages in acts or omissions that are negligent or wrongful under state law. Given that the president exercises enormous executive power, it was difficult to imagine that Congress intended for the FTCA to permit lawsuits that call “the president’s official conduct into question” [p. 30] and create wider federal tort exposure.
Other cases that the government relied on regarding “elected officials” generally being government employees under the Westfall Act did not hold up and none supported the notion that the statute applied to the president. In sum, the Court concluded that the president was not an “employee of the Government” under the Westfall Act and, thereby, the Attorney General’s certification was “erroneous” [p. 33].
Regarding the second issue of scope of employment, the Court decided it was suitable to address the question to avoid an unnecessary remand in the case that a higher court differed on the first issue. Firstly, determining whether employees were acting within the scope of their employment under the FTCA was settled by the respondeat superior law of the jurisdiction where the tort transpired; this rule derived from a provision of the FTCA. It was agreed that the tort occurred in Washington D.C., not New York where the plaintiff claimed she was injured. Additionally, the Court noted a deeper debate on whether it should simply apply D.C. respondeat superior doctrine or D.C.’s choice of law rules to decide which jurisdiction’s respondeat superior doctrine applied. However, it concluded that the doctrines in both New York and D.C. would present the same outcome on the facts, largely for the same reasons, and it was unnecessary for a choice of law analysis to be done.
The Court outlined that “‘respondeat superior is a doctrine of vicarious liability’ that imposes liability on employers for tortious and negligent ‘acts of [their] employees committed within the scope of their employment’” [p. 39].
While acting within the scope of employment was usually a question of fact, the issue was a question of law since there was no sufficient evidence to conclude that the action was within the scope of the employment. In terms of this legal question, the Court turned to Section 228 of the Restatement (Second) of Agency that states the respondeat superior theory of liability depends on a master-servant relationship between the employer and its employees and that the latter was operating within the scope of their employment. The test for a master-servant relationship is whether the “employer has the right to control and direct the servant in [his] performance” [p. 41]. This is comprised of five factors: the engagement of the servant; the payment of wages; power to discharge; power to control the servant’s conduct; whether the work is part of the employer’s regular business.
Except for the payment of a salary, the Court noted that none of the factors were satisfied in the case. Specifically, the president is selected by the electoral college; the government does not have the general power to discharge him; and remarking on sexual assault allegations was not part of the government’s regular business. The most decisive factor would be control, but the Court explained that no one, “inside or outside of the executive branch” [p. 43], has the power to control the president, referencing Article II of the US Constitution and Justice Scalia’s dissent in Morrison v. Olson 487 U.S. 654 (1988). In the Court’s view, construing that someone else has control over the president would “turn the Constitution on its head” [p. 44].
In light of the case’s facts, President Trump was clearly not controlled when he commented on the plaintiff’s accusation, which was separate of government business. Therefore, he is not a “servant” within the meaning of the D.C.’s scope of employment doctrine and was not acting with the scope of his employment when making the statements. The Attorney General’s certification under the Westfall Act was, again, held “erroneous” [p. 45].
The Court also assumed, arguendo, that even if President Trump was an employee whose master was something akin to “the public” [p. 45-46] that he would still not be acting within the scope of his employment when he made his statements. This is because D.C. law requires that the tortious activity is “actuated” by a determination to advance the master’s business, and thus excludes “all actions committed solely for the servant’s own purposes” [p. 46]. Referencing the Council on American Islamic Relations v. Ballenger 444 F.3d 659 (D.C. Cir. 2006), the government argued that speaking to reporters is part of the president’s business and, in turn, within the scope of his employment. The Court found Ballenger’s reasoning “wanting” [p. 49] and contended that the essence of the president’s statements matters for what falls within the scope of his employment.
Referencing Clinton v. Jones 520 U.S. 681 (1997), the Court added the perspective that a president’s remarks about a sexual assault allegation “fall somewhere between being outside the scope of his duties and ‘within [their] outer perimeter’” [p. 54]. That, in tandem with D.C. law that conduct that is “too little actuated by a purpose to serve the master” [p. 54] is not sufficient, showed how unclear it was that conduct that was mostly in the “outer perimeter” of the president’s business “could be actuated in any meaningful degree to serve his master”. Moreover, all other Westfall Act defamation decisions cited by the government were distinct from this case on law and facts.
The Court finally concluded that the same outcome would be reached under New York law where it was held that “sexual misconduct and related tortious behavior arise from personal motives and do not further an employer’s business, even when committed within the employment context” [p. 58] – a determination which the case’s factual considerations do not challenge. Overall, the Court believed that linking the President’s comments with his official business would force an interpretation that all actions by the president are “within the public interest by virtue of his office” – a notion that the government had not substantiated, and which was “too expansive” [p. 59].
Hence, the President of the US was not an “employee of the Government” in accordance with the relevant statutes and, even if he were such an “employee”, the allegedly defamatory statements would not have been within the scope of his employment. Therefore, the motion to substitute the US for President Trump as the defendant was denied.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression because it favors the plaintiff in her defamation lawsuit. She is able to continue suing President Trump in his personal capacity.
In addition, the reasoning of the opinion indirectly contracts expression. Firstly, the Court outlines that if the President was considered an employee under the FTCA, the entire lawsuit would likely be dismissed because the FTCA’s waiver of sovereign immunity contains an exception for defamation claims. The Court concluded that the FTCA did not apply and, in turn, that the defamation claims would proceed.
By not allowing the President’s comments to fall within the scope of his employment, the Court concluded that expression cannot always be linked to the government’s business, which in the context of the present case was a positive outcome.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Court added the perspective that a president’s remarks about a sexual assault allegation “fall somewhere between being outside the scope of his duties and ‘within [their] outer perimeter’” [p. 54].
The Court highlighted a point of statutory interpretation: that courts were prohibited from presuming that statutes subjected “the president’s performance of his statutory duties” [p. 27] to review when they are actually silent on the matter.
The US Supreme Court decided that the president is “entitled to absolute immunity from damages liability predicated on his official acts” [p. 25].
Case significance refers to how influential the case is and how its significance changes over time.
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