By Kara Scannell, CNN
Updated: Fri, 03 Dec 2021 19:18:34 GMT
Three federal appeals court judges quizzed lawyers for E. Jean Carroll, the Justice Department and former President Donald Trump on Friday to determine the fate of Carroll's defamation lawsuit against Trump.
The judges asked whether Trump's response to Carroll's rape allegations went well beyond the contours of his employment and whether the case should be sent to a local Washington, DC, court to determine the question of whether the President was acting within the scope of his job under DC law.
The case centers on Trump's legal argument, which was backed by Trump and Biden Justice Department leaders, that he was acting in his official duties when he responded to reporters' questions Carroll's 2019 book. Trump denied her claim that he raped her in a New York department store in the mid-1990s and went on to say she wasn't his type and that she made the allegation to boost sales of her book.
"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?" said Judge Denny Chin. "It would be one thing if he said he didn't do it. He goes way beyond that."
Carroll sued for defamation in 2019, and both the Trump and Biden-led Justice Departments have backed the former President's position, to much controversy.
"The former president made crude and offensive comments in response to very serious allegations of sexual assault," Justice Department attorney Mark Freeman said in court Friday. "I'm not here to defend or justify them."
The stakes in the case are high. Trump faces a number of lawsuits and investigations and if he loses, he could be ordered to sit for a deposition and provide a sample of his DNA, which Carroll wants compared to genetic material she says was on the dress she wore the day of the alleged assault. If Trump prevails, the case will likely be dismissed, handing him another legal victory weeks after another accuser, Summer Zervos, dropped her defamation lawsuit against Trump sparing him a deposition and any possible financial damages.
The case was initially brought in state court but moved by the Trump Justice Department, which argued that since Trump, as president, was serving in his official capacity and therefore the Justice Department should be substituted as the defendant. The government cannot be sued for defamation.
Trump's attorney, Alina Habba, said Friday that "rape is not the underlying allegation in this case. This is a defamation case. This is not a personal retaliation."
"If we are to say that just because we don't like the way the President responds, what is the court going to do if Kyle Rittenhouse goes after President Biden for calling him a white supremacist?" Habba added. "Is he to say because he shouldn't have used those words that the Westfall Act doesn't apply to Biden? They need to focus on their job. We are all imperfect people."
Friday, Judge Guido Calabresi suggested the panel could send it to the DC local courts to have the question about the scope of DC law applied in the case.
"The fact is the President has often done things which go beyond the law for purposes of the presidency," Calabresi. "Almost every president has done it, and indeed what is impeachable is when somebody like Mr. Nixon did something not for the presidency but for his own benefit. But that's a mighty difficult thing."
Carroll's attorney Joshua Matz, said it would be a line that is violated in "extreme circumstances" but noted that if an elected official harms someone and there is no remedy available to them it is "at odds with the axiom that nobody is above the law."
Previously, US district Judge Lewis Kaplan had rejected Trump and his DOJ's argument finding Trump was not a federal employee as Congress defined it.
The appeals panel did not say when it would rule.
This has been a difficult issue for the Biden administration and Attorney General Merrick Garland, who defended the position at a Senate Appropriations subcommittee hearing earlier this year.
"Look the job of the Justice Department in making decisions of law is not to back any administration, previous or present ... And the essence of the rule of law is what I said when I accepted the nomination for attorney general, it is that like cases be treated alike, that there not the one rule for Democrats and another for Republicans, that there not be one rule for friends and another for foes," Garland said in response to a question from Sen. Patrick Leahy, a Democrat from Vermont.
On Wednesday, Trump counter-sued Carroll under New York's anti-SLAPP statute, a law to counter frivolous defamation lawsuits, alleging Carroll sued Trump as "retribution" for his truthful statements and "for the sole purpose of harassing, punishing or otherwise maliciously inhibiting his free exercise of speech."
Trump is seeking attorneys' fees and damages. It is not clear how a federal judge will view the state law claim.
This story has been updated with details of Friday's hearing.