Appeals court weighs whether Justice Department should substitute for Trump in defamation suit

A federal appeals court on Friday peppered the Justice Department with questions over whether it's appropriate for the department to substitute for former President Donald Trump in the defamation lawsuit brought by E. Jean Carroll.

Carroll, a former Elle magazine columnist, sued Trump in November 2019 after he denied raping her in a dressing room at Bergdorf Goodman in the 1990s. Trump claimed Carroll wasn't his type and made up the story to sell a new book.

The Justice Department is appealing the ruling of U.S. District Judge Lewis Kaplan, who in October rejected the DOJ's bid to replace Trump as the defendant in the case.

The DOJ's Mark Freeman conceded during arguments on Friday that "the former president made crude and offensive comments" when he responded to Carroll's rape accusation, but that he spoke in his capacity as president, therefore allowing the U.S. government to take over as the defendant, shielding Trump from personal liability.

"Any president facing a public accusation of this kind in which the media is very interested would feel obliged to answer questions from the public, answer questions from the media," Freeman said during oral arguments before the 2nd U.S. Circuit Court of Appeals. "It is part of the responsibility of a public official to address matters of grave interest to the public."

One of the appellate judges, Denny Chin, suggested that the context and content matters.

"Shouldn't we be parsing the individual comments to see whether they're serving the country?" Chin asked. "Who is he serving when he says 'She's not my type?'"

Another member of the three-judge panel, Guido Calabresi, questioned what law determines whether Trump was acting within the scope of his employment.

"We don't have any cases that tell us," Calabresi said.

Trump's attorney, Alina Habba, said that Trump was obligated to respond to Carroll's accusation.

"When somebody says he did a heinous crime 20 years ago, he needs to address it," Habba said.

Carroll's attorney, Joshua Matz, said Trump "acted in pursuit of private motives" and that Carroll should be allowed to hold him personally accountable.

"A mere denial is not the same as 'I didn't rape her and she's too unattractive for me to have done it,'" Matz said.