Carroll v. Trump, Redux: Why Would Congress Want to Have State Law Determine the President's Scope of Employment When the President is Already Immune for Acts Within the Outer Perimeters of the Office?

The Justice Department’s invited amicus curiae brief in Blassingame v. Trump1 exposes another anomaly in treating the President’s scope of employment as a question of state tort law for purposes of the Westfall Act. In considering whether the President is a federal employee for purposes of the Westfall Act in the Carroll v. Trump matter, why didn’t the district court and the Second Circuit majority address the doctrine of presidential immunity? 

Blassingame and the other cases consolidated with it were tort actions under federal law arising from the January 6 insurrection. The U.S. Court of Appeals for the D.C. Circuit invited the Justice Department to address former President Trump’s immunity, not under the statutory substitution procedure of the Westfall Act, but under the constitutional doctrine articulated in Nixon v. Fitzgerald, 457 U.S. 731 (1982). As described in the Justice Department brief, in Nixon, the Supreme Court “recognize[d] absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” 457 U.S. at 756. 

In a previous post, I suggested that whether the Justice Department could remove a tort claim from state court and substitute the United States as the defendant under the Westfall Act on the ground that the tortious conduct was within the defendant’s scope of federal employment had to be a question of federal, not state law, and that the FTCA’s textual absorption of state tort liability principles did not include the scope of employment question. The idea behind the FTCA was to make the United States liable in the same way as the individual employee would be under the applicable state law, if the employee was acting within the scope of federal employment. But there are strong policy reasons as well as jurisdictional and textual reasons to think the scope of federal employment is a federal question that should be the same nationwide, for any kind of federal employee. Otherwise, the same position, or even the same federal employee, could be treated as having different duties in different states, and each state could alter the incentives for federal employees through its own respondeat superior standards.

Before deciding to certify the scope of employment question to the D.C. Court of Appeals, the Second Circuit first had to decide whether the Westfall Act applies to the President. Section III of the Second Circuit’s opinion addresses the question: “Does the President of the United States fall within the meaning of ‘employee of the Government’ as that term is used in the Westfall Act?” Carroll v. Trump, 49 F.4th 759, 767 (2d Cir. 2022). The court devoted five pages of its opinion to that question; the court noted the president is paid money for services and that in prior cases involving the president, Westfall Act substitution went uncontested. Id. at 767-772. Judge Chin dissented on that point. See id. at 785-89. Among other things, Judge Chin pointed out that “the Westfall decision had no effect on the potential liability of the President, who, as the Supreme Court held in 1981, is shielded by ‘absolute Presidential immunity from damages liability’ for official acts. Nixon, 457 U.S. at 756. Accordingly, Congress had nothing to restore with respect to the President. There was no need for the Westfall Act to cover the President, for the President already had absolute immunity for actions taken within the scope of the presidency.” Id. at 788 (Chin, J., dissenting).   

The Second Circuit majority did not explicitly address presidential immunity in deciding whether the term “employee” in the Westfall Act was consistent with the president’s unique status. It seems strange that Congress would have thought it appropriate to make the United States liable for a tort committed by the President within the scope of employment (for torts within the FTCA waiver of sovereign immunity) or to rely on statutory immunity (for torts like defamation outside the FTCA waiver) when the President would be immune anyway. Westfall Act substitution does not serve any apparent purpose, except perhaps in some circumstances to make the United States liable despite the president’s own constitutional immunity. But it doesn’t make much sense to read the Westfall Act as intended to waive sovereign immunity and make the federal government responsible for tort liability that did not pose any threat to an employee (assuming the president is an employee) given the substantial gaps in the FTCA waiver—including for defamation—that mean Westfall Act substitution leaves the injured party without a tort remedy.  

Moreover, constitutional immunity extending to the “outer perimeter” of the President’s official responsibility will be broader than immunity derived from ordinary scope of employment. See U.S. Amicus Br. 14 n.3 (distinguishing constitutional presidential immunity from the Westfall Act standard applicable to Congressman Mo Brooks for his remarks at the same January 6 rally at which the former President spoke); Carroll v. Trump, 498 F. Supp. 3d 422, 456 (S.D.N.Y. 2020), rev’d in part, vacated in part, 49 F.4th 759 (2d Cir. 2022) (“[E]ven if commenting on this matter fell within the outer perimeter of those duties, that faint nexus is not enough under the District of Columbia’s scope of employment doctrine.”).

The Supreme Court in Nixon adopted an expansive outer perimeter standard “[i]n view of the special nature of the President’s constitutional office and functions,” 457 U.S. at 756, which made the scope of the president’s duties especially hard to pin down. And the entire argument for presidential immunity was laden with strong and uniquely federal interests. Id. 752-53. But in a Westfall Act case, the court would have to apply a general (state law?) scope of employment test to decide whether the United States could be substituted, rather than using the expansive “outer perimeter” test from Nixon, engaging in the very analysis the Supreme Court discouraged. In light of the Supreme Court’s reasons for avoiding the need to precisely define the president’s official duties in Nixon, would Congress have intended to have state law respondeat superior standards govern liability for presidential conduct?

The district court in the Carroll case has not yet resolved the former president’s own belated argument for summary judgment invoking Nixon absolute immunity. Carroll’s lawyers have argued the former president waived the immunity defense by not raising it earlier when the case was still in state court,2 and that he would lose under the Nixon standard.3 Even under the “outer perimeter” standard, “the Supreme Court declined to address whether Clinton’s defamatory statements [denying sexual misconduct] were taken within the ‘outer perimeter’ of his official responsibilities,” observing only that the allegations “arguably may involve conduct” within that outer perimeter.4 Id. at 24. But regardless how the absolute presidential immunity question comes out in Carroll v. Trump, the existence of presidential immunity surely has some bearing on whether to interpret the statutory term “employee of the government” to include the President under the Westfall Act.

D.C. Cir. No. 22-5069, Doc. No. 1988265 (filed Mar. 2, 2023) (oral argument held Dec. 7, 2022). 
2 See Carroll v. Trump, S.D.N.Y. No. 1:20-cv-07311-LAK, ECF No. 125 at 5 (Jan. 24, 2023) (“Trump not only failed to raise absolute immunity, but affirmatively told the state court that he did not seek to ‘escape accountability’ and that Carroll was ‘free to pursue this action’ after his tenure in office.”). 
3 See Carroll v. Trump, S.D.N.Y. No. 20-cv-07311-LAK, ECF No. 113 at 10-27 (Jan. 12, 2023). 
4 Id. at 24 (quoting Clinton v. Jones, 520 U.S. 681, 686 & n.3 (1997)).

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.

David A. Reiser

David A. Reiser
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As the regulatory and business environments in which our clients operate grow increasingly complex, we identify and offer perspectives on significant legal developments affecting businesses, organizations, and individuals. Each post aims to address timely issues and trends by evaluating impactful decisions, sharing observations of key enforcement changes, or distilling best practices drawn from experience. InsightZS also features personal interest pieces about the impact of our legal work in our communities and about associate life at Zuckerman Spaeder.

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.