A widely criticized opinion issued last year by the Department of Justice could shield Donald Trump from accountability for inciting the Jan. 6 insurrection.
The department decided to keep defending Trump in a rape defamation case filed by advice columnist E. Jean Carroll, arguing that he was a federal employee when he called his accuser a liar, and thus immune from lawsuits, and a divided appeals court agreed -- over the starkly worded objections of one panelist, reported The Daily Beast.
“Under this logic, so long as a president looks like he is engaged in conduct that is of the kind he is expected to perform — like speaking to a reporter or attending a government meeting — he is acting in the scope of his employment," wrote Judge Denny Chin, of the Second District Court of Appeals, in his dissent. "But if that were so, then the mere presence of others would neutralize whatever a president did or said, for no president could be held accountable for damage done in front of a microphone or in an official meeting — whether defaming a citizen, exposing classified national security information, or inciting a riot."
“This is not, and should not be, the law,” he added.
The DOJ's decision to keep defending Trump in that lawsuit persuaded the other two appellate judges, who agreed that the former president was a federal employee when the complaint was filed and thus entitled to protections under the 1988 Westfall Act.
“As Trump points out in his brief, the president is a government employee in the most basic sense of the term: He renders service to his employer, the United States government, in exchange for a salary and other job-related benefits,” wrote Judges Guido Calabresi and William J. Nardini in their decision.
However, the Second District sent another question raised by Trump's lawyers to the District of Columbia Court of Appeals, which will decide whether Trump's comments about Carroll -- “No 1, she’s not my type. No. 2, it never happened" -- were made “within the scope of his employment as president of the United States.”
The DOJ has already stated its position, that Trump's actions were well within his employment, and Chin's dissent warns that could give the former president another legal strategy to protect him from the tidal wave of civil lawsuits related to his role in encouraging rioters to storm the U.S. Capitol, where they injured law enforcement officers and destroyed property.
“This is a win for Trump, no doubt. Is he going to use it in civil and criminal matters? One hundred percent,” said Quinnipiac University law professor John Pavia.
However, Pavia doubts that defense will actually work in those cases, saying those three lawsuits are different enough from Carroll's complain that the Second Circuit ruling shouldn't apply.
“I don’t think it’s going to have the power of a landmark decision that’s going to somehow sway or have influence on everything else going on,” Pavia said.
One of the lawyers who's suing Trump for inciting the riot agreed, saying the former president had gone far outside the bounds of his authority by whipping up an angry mob to attack the Capitol to disrupt the electoral process.
“It’s apples and oranges," said Phil Andonian, one of the attorneys in Rep. Eric Swalwell's suit against Trump. "Whatever he was doing in Carroll was fundamentally different than what he was doing on Jan. 6 in the lead up to the attack on the Capitol. What we’re alleging in our case is fundamentally different than [Trump] saying something in response to an official interview. Our central point is that what Trump did was unleash a mob on Congress… and launching an attack on a co-equal branch of government is certainly not within the ambit of presidential authority.”