A federal appellate court has delivered a detailed explanation for its ruling against President Donald Trump in the long-running defamation lawsuit brought by writer E. Jean Carroll.
In late June, the US Court of Appeals for the 2nd Circuit dismissed an attempt to have taxpayers cover Trump’s appeal against the $83 million judgment awarded to Carroll.
The three-judge panel rejected a claim invoking the Westfall Act of 1988 — a law that can require the Department of Justice (DOJ) to assume legal responsibility for officials sued for acts performed within their official duties.
Senior Judge Denny Chin, along with Judges Sarah Merriam and Maria Araújo Kahn, had promised on June 18 they would later issue a full opinion explaining their decision.
Now, almost two months later, the court has published a 23-page per curiam opinion outlining its reasoning. The central issue was timing.
The court said the Westfall Act barred the claims because the motions were filed after the trial, and both Trump and the government had “waived their rights” by applying for relief too late. The judges also cited “principles of equity” to deny the belated motion and affirm Carroll’s victory.
The ruling opens with a summary before delving into the statute, identifying “three avenues for substitution.” These include actions started in federal court with a DOJ certification, those removed from state court with such certification, and cases lacking certification.
Carroll’s lawsuit began in New York state court in November 2019 but was removed to federal court by then-Attorney General Bill Barr in September 2020, accompanied by a Westfall Act certification.
Carroll prevailed on the core issues at summary judgment, with a jury trial held in January 2024 to determine damages.
The court found that complex procedural events spanning several years ultimately worked against Trump, the 45th and 47th president.
It ruled that Barr’s certification alone was insufficient.
“Certification is conclusive for removal purposes, but substitution remains subject to judicial review,” the opinion said. The district court had denied Trump’s motion to substitute.
Trump appealed, and a prior 2nd Circuit panel reversed and remanded the case to U.S. District Judge Lewis Kaplan. But the new ruling essentially deferred the substantive issues again.
A question was certified to the D.C. Circuit on whether Trump acted within the scope of his presidential employment when defaming Carroll. However, the D.C. Circuit provided only general guidance on employer liability and sent the case back to Kaplan to apply those principles.
Following the remand, and with Merrick Garland as attorney general, the DOJ revoked the Westfall Act certification in July 2023, a move Kaplan accepted.
The appeals court noted that no further Westfall Act substitution efforts were made by Trump or the government before trial.
This absence was key to the court’s decision: Trump had options to petition for substitution but failed to act.
The court emphasized Trump waived the right to petition after the government refused pre-trial certification. Under the law, an “employee” can petition the court before trial if the attorney general refuses certification.
“Trump did not file anything on substitution in district court after remand,” the court said. “By declining to seek relief, he waived his right to bring the motion now.”
Additionally, the court ruled that Trump’s most recent motion was filed too late.
“The motion was filed after trial and during the pendency of the appeal,” the judges wrote.
The court also weighed fairness to Carroll.
“After more than five years of extensive litigation and multiple court proceedings, allowing this untimely motion would unravel the process and jury verdict,” the opinion stated.
It noted the request came nearly three months after the government’s revocation and after the appeal briefing had closed for almost two months.
“Given the substantial costs and Carroll’s significant victory, it is simply too late for this motion,” the panel concluded.
“Fairness and equity require denying the motion to substitute.”
