On Wednesday, a three-judge panel flatly rejected President Donald Trump’s attempt to substitute himself for the DOJ in his ongoing effort to overturn the $83 million defamation judgment in favor of E. Jean Carroll.
Just days before scheduled oral arguments at the 2nd U.S. Circuit Court of Appeals on June 24, Senior U.S. Circuit Judge Denny Chin, a Barack Obama appointee, and U.S. Circuit Judges Sarah Merriam and Maria Araújo Kahn, both Joe Biden appointees, rejected Trump’s latest attempt to invoke the Westfall Act. The panel has not yet revealed its reasoning, and it is unclear when it will.
According to the panel’s one-page order: one-page order:
Oral argument in this matter is scheduled for June 24, 2025. Appellant has moved to substitute the United States as a party pursuant to the Westfall Act, 28 U.S.C. §2679(d).
IT IS HEREBY ORDERED that the motion is DENIED. The Court will issue an opinion detailing its reasoning in due course.
As far back as 2020, and just months before the election, Trump asserted that he was covered by the Westfall Act—which extends protection against tort claims, such as defamation, to federal employees by substituting the government as the defendant—because he was “acting within the scope of his office as President of the United States” when he called Carroll’s rape accusation a politically and financially motivated lie or “hoax” and denied knowing who she was.
Much has happened since then, including a change in administration. Following the Biden administration’s reversal of Westfall Act immunity, a $5 million civil jury verdict in 2023 found Trump liable for sexually abusing Carroll in the 1990s and defaming her by calling the allegations a “hoax” decades later during his first term in office.
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The 2nd Circuit recently denied Trump’s request for an en banc rehearing of his appeal of the $5 million judgment, much to the chagrin of two Trump-appointed judges who called Senior U.S. District Judge Lewis Kaplan’s evidentiary rulings “indefensible” — in part because the trial did not allow the president to investigate whether Carroll’s allegations and lawsuits were politically motivated and financially supported by Democrats.
In 2024, a separate jury ordered Trump to pay $83 million in damages for defamatory statements, and the president’s appeal in this case is set to be heard next week — but the DOJ will not be arguing.
When the DOJ filed its motion to substitute in April, it reiterated that Trump, a federal employee, was “acting within the scope of his office or employment at the time of the incident out of which” Carroll’s defamation claims “arose.”
Only ten days later, Carroll’s legal team countered that Trump should not be rewarded with Westfall Act substitution due to lateness, blaming his then-private lawyer Alina Habba for “doing nothing”:
The Westfall Act expressly provides a party like Trump with the right to petition the court “before trial” for a determination as to whether the party was acting within the scope of his employment in connection with the acts in question. Trump, however, then being represented by the now-acting United States Attorney for New Jersey Alina Habba, decided to forfeit this right to invoke [the law] by doing nothing. In other words, Trump abandoned any arguments he may have had under the Westfall Act, deciding instead to press a different, last-ditch claim of Presidential immunity, which this Court, in its third decision in these related cases, subsequently rejected in December 2023.
