DOJ won't support shielding Trump in original E. Jean Carroll lawsuit

The Justice Department on Tuesday reversed its position that former President Donald Trump was shielded from a 2019 defamation lawsuit filed by the writer E. Jean Carroll.

The government had originally argued that Trump was protected from liability by the Westfall Act, because he was acting as a federal employee. Under the act, federal employees are entitled to absolute immunity from personal lawsuits for conduct occurring within the scope of their employment.

Principal Deputy Assistant Attorney General Brian Boynton wrote in a letter Tuesday to attorneys for Trump and Carroll that a jury's determination in a separate civil lawsuit that Trump was liable for sexual abuse and defamation of Carroll factored into the decision. That lawsuit was filed in November 2022 and involved statements Trump made after his presidency.

"The allegations that prompted the statements related to a purely personal incident: an alleged sexual assault that occurred decades prior to Mr. Trump's Presidency," Boynton wrote. "That sexual assault was obviously not job-related."

Carroll filed her first lawsuit in 2019, while Trump was still president — and after he accused her of "totally lying" when she said he sexually assaulted her in a high-end New York City department store in the 1990s. In October 2021, a federal judge in New York ruled that Trump was not shielded from Carroll's suit. In 2022, the 2nd Circuit U.S. Court of Appeals reversed the lower court's decision and suggested the Westfall Act could protect Trump from liability in the case. 

The lawsuit has remained active and has yet to go to trial. After the jury found Trump liable in April, Carroll amended the suit, adding new defamation claims related to more recent statements made by Trump, and he filed a countersuit. 

The Justice Department had initially argued that even though "the former president made crude and offensive comments in response to the very serious accusations of sexual assault" the law protecting employees like the president from such a lawsuit should be upheld.

But the Justice Department reviewed that decision after the jury in Carroll's second lawsuit in New York found Trump liable for sexual abuse and defamation, Boynton wrote. It concluded that Trump had not acted "out of a desire to serve the government" when he denied her claims.

Boynton also cited statements Trump has made about Carroll in the years since his presidency ended.

"These post-Presidency statements, which were not before the Department during the original scope certification in this case, tend to undermine the claim that the former President made very similar statements at issue in Carroll out of a desire to serve the government," Boynton wrote.

Carroll's attorney, Roberta Kaplan expressed gratitude for the department's reversal and said in a statement, "We have always believed that Donald Trump made his defamatory statements about our client in June 2019 out of personal animus, ill will, and spite, and not as President of the United States."

She added that "we look forward to trial in E Jean Carroll's original case in January 2024."

An attorney for Trump did not immediately return a request for comment.

Graham Kates is an investigative reporter covering criminal justice, privacy issues and information security for CBS News Digital. Contact Graham at [email protected] or [email protected]