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In boost to Trump, appeals court opens door to DOJ shielding him in defamation lawsuit

E. Jean Carroll in the New York state Supreme Court on March, 4, 2020. (Alec Tabak/New York Daily News/Tribune News Service via Getty Images)

 (CNN) — A federal appeals court on Tuesday opened the door to allowing the Justice Department to shield former President Donald Trump for his conduct while president in a defamation lawsuit brought by columnist E. Jean Carroll.

That question — if Trump can be held personally responsible in Carroll’s defamation case — will now be sent to an appeals court in Washington, DC.

The Justice Department, under both the Trump and Biden administrations, is siding with Trump in arguing that the US government should be substituted for Trump as a defendant, a move that would have the effect of forcing the defamation case’s dismissal.

“Under the circumstances, we cannot say what the District would do in this case,” the appeals court wrote on Tuesday. “Under the laws of the District, were the allegedly libelous public statements made, during his term in office, by the President of the United States, denying allegations of misconduct, with regards to events prior to that term of office, within the scope of his employment as President of the United States?”

The 2-1 decision from the 2nd US Circuit Court of Appeals reverses a trial-court finding that Trump couldn’t be shielded by the Justice Department in the defamation case.

Trump attorney Alina Habba praised the ruling in a statement: “We are extremely pleased with the Second Circuit’s decision today in reversing and vacating the District Court’s finding in this matter. This decision will protect the ability of all future Presidents to effectively govern without hindrance. We are confident that the D.C. Court of Appeals will find that our client was acting within the scope of his employment when properly repudiating Ms. Carroll’s allegations.”

Carroll sued Trump in 2019 alleging he defamed her when he denied her allegations that Trump raped her in a New York department store dressing room in the mid 1990s and went on to say “she’s not my type” and accused her of making the allegation to boost sales of her book. Trump denies all allegations.

The Justice Department first indicated it wanted to defend Trump in the case in September 2020, when he was still occupying the White House. The department has argued that it must take over because Trump’s comments spurring the defamation lawsuit came while he was in office.

Carroll’s attorney Roberta Kaplan pointed to the dissenting opinion written by Judge Denny Chin, in which Chin said that Trump should not be deemed immune from the lawsuit and that his conduct fell outside the scope of his duties as president.

“We are confident that the D.C. Court of Appeals, where this case is now headed on certification, will agree,” Kaplan said in statement.

In the dissent, Chin wrote: “Carroll’s allegations plausibly paint a picture of a man pursuing a personal vendetta against an accuser.”

Carroll plans to sue Trump under a new New York statute that allows victims of sexual assault to sue years after the encounter, her attorneys said in a court filing last week.

The New York Adult Survivors Act allows adult survivors to bring claims that would otherwise be barred by the statute of limitations. Carroll will allege battery and intentional infliction of emotion distress in the suit, her lawyers told the judge.

Meanwhile, Trump continues to argue he should have immunity for the time when he was President. The federal court of appeals in DC, the D.C. Circuit, now has in front of it a separate major case testing the absolute immunity of Trump while he was president. The other case, a lawsuit seeking to hold Trump liable for conspiracy around January 6, will test whether the presidency shields him. It is not yet scheduled for oral arguments.