President Trump returned to the Supreme Court Tuesday night, seeking new clarity on how far the Court will go to protect him when he is found to have broken the law. The appeal is an attempt to elevate to constitutional dignity the sordid scandal of a sexual assault accusation that led to jury verdicts against him, totaling almost $90 million.
While Trump, with his own lawyers, argued that the Court should not hesitate to reach for a new and sweeping constitutional declaration on presidential immunity, his Justice Department added its legal weight to Trump’s plea, but also suggested that the Court could rule in the President’s favor by leaving the grave constitutional issues aside and opting, instead, to use an existing 1988 federal law that could swiftly end the entire controversy over the huge jury verdict, simply erasing that award.
Since 1793, the Supreme Court has checked its own power by refusing to decide constitutional questions, if cases can be decided without doing so. That is in keeping with the Constitution’s mandate that the Court can only decide genuine legal disputes, and can’t issue advisory rulings.
The current Court, however, has been bold about its use of its constitutional powers – as it notably did two years ago in creating an entirely new form of Constitution-based legal immunity for Presidents, past and future. Trump’s new appeal relies heavily upon that decision, and seeks to expand it, hoping that the Court’s current conservative majority will be ready to do so.
Trump and Jean Carroll, a New York celebrity and a writer for Elle magazine, have been feuding in and out of court for more than seven years over her accusation that, years earlier, Trump had sexually assaulted her in a dressing room in a New York City department store.
When Carroll first made the accusation, in 2019, Trump was in his first term in the White House. In a White House press release and in comments to reporters at the White House, the President accused her of lying and denounced her story as fiction to help her promote a book. He said she copied the plot from a television crime show.
Over the years since then, Carroll’s lawsuits against Trump have resulted in two verdicts. The first came in May 2023, when the jury ruled in her favor on sexual abuse ($2 million award) and on defamation ($3 million).
Late last month, the Supreme Court – without explanation – refused to hear Trump’s challenge to that $5 million verdict. (After the Court bypassed that appeal, the verdict amount — plus nearly $800,000 in accumulated interest — was paid to Carroll. Trump is still protesting that payment in lower courts.)
The other verdict, $83.3 million and rising daily as interest builds up, was awarded to Carroll in January 2024 by a jury after it found that further comments about her by Trump after he had left the Presidency caused more harm to her reputation. The verdict was $18.3 million to compensate her plus $65 million in “punitive damages.”
That is the verdict that now is being tested in the Supreme Court by Trump and, separately, by the Justice Department. Both appeals seek fast action by the Court, but it is not clear at this point whether the Court will react while it continues its summer recess, ending in October with opening of a new term.
First, here are the new constitutional rulings that Trump is seeking:
1. That the statements he made at the White House in 2019 were part of his official duties, because he was answering questions about his fitness for office and he used White House aides and facilities in making the remarks. Those statements, he contends, should be immunized by the Court’s 2024 decision on presidential immunity. This could give the Court a chance now to further clarify the scope of that decision.
2. That the kind of presidential immunity he is claiming for those 2019 statements cannot be forfeited in any court proceeding. A federal appeals court ruled that Trump had not made the claim of immunity early enough in the court proceedings, so it had been waived. Trump is arguing that such protection, being based on the Constitution, can never be taken away or given up.
3. That the Justice Department should have been allowed in lower courts to take on the task of defending Trump in court against Carroll’s accusations, relying on the 1988 law known as the “Westfall Act.” (This point is the basis of the Justice Department’s new appeal, and will be spelled out further below.)
Second: The Justice Department, which acts as the President’s lawyer on official matters, is pursuing its own appeal with a different approach. While it supports all three of the arguments that Trump is making, it emphasized the third: applying the so-called “Westfall Act” to end the big verdict for Carroll without making any new constitutional rulings.
The Westfall Act takes its name from a 1988 Supreme Court decision in the case of Westfall v. Erwin. In that ruling, the Court narrowed the legal immunity that federal government employees receive when they are sued for causing harm to another person, while the employee is carrying out official duties.
Congress quickly passed a new law that restored some of the immunity lost by that decision. It specified that, if a federal employee is sued for harms done when taking official action, the Attorney General can move in and take on the legal defense of that employee, if the Attorney General is satisfied that the action did result from performance of duty.
What is important about the Westfall Act, for purposes of the Jean Carroll verdict, is that it would allow Trump’s own Justice Department to substitute the federal government as the entity being defended in the lawsuit and, most importantly, a separate 1946 federal law does not permit anyone to sue a federal employee or the government for libel or slander – that is, defamation of the kind involved in Carroll’s victories against Trump.
Because that $83.3 million verdict was imposed for further harm to Carroll’s reputation, the entire award is related to the claim that Trump had repeatedly defamed her good name.
When a lower federal court reviewed that verdict for Carroll, it noted that three different Attorneys General had taken different positions on whether the harm to Carroll had resulted from Trump’s exercise of official duties of the Presidency. When the third of those Attorneys Generals – Pamela Bondi — came into office with President Trump’s second term, and tried to take over the defense, the lower court ruled that it was too late.
There is nothing in the Westfall Act, the Justice Department’s new appeal argues, that puts any time limit on when the Attorney General can step in and take over a case against the President as a federal employee.
The constitutional arguments that Trump’s appeal seeks to make, the Department told the Court, run into the tradition of “constitutional avoidance” and the Court would not have to opine on constitutional questions if the Westfall Act were used as the basis for a Supreme Court ruling against Carroll.
The Court has complete discretion whether it will grant review of any issues in the Trump-Carroll feud and it has full discretion about when it will take any action. It has the option of doing something even during its summer recess, but that happens rarely. At a minimum, Jean Carroll’s lawyers will have an opportunity to answer both of the new appeals.
