Once Again, Trump Looks To Get Out Of Paying E. Jean Carroll By Having The DOJ Substitute In For Himself

from the the-crazy-never-ends dept

Not this again. For many years now there have been a series of ongoing lawsuits between E. Jean Carroll and Donald Trump, involving a variety of issues, but mainly whether or not he sexually assaulted her back in the 1990s and, separately, whether he defamed her in claiming he’d never met her after she accused him of sexual assault. As I’ve explained previously, I think the defamation claim part of it is pretty weak, but back during the first Trump administration, he had sought to have the DOJ substitute in and take over for him in the defamation case, which would have immediately ended the case, as you can’t sue the government for defamation. Having the DOJ substitute in for a government employee is allowed under the Westfall Act, and is designed to allow the US government to become the party when a government employee is sued for doing something in the course of their job (the normal example is if a government driver hits someone with a vehicle).

Back in 2020, this failed, as the judge pointed out that denying you raped someone is not part of the president’s official job.

Eventually the various cases made it to trial and the two juries that heard the cases awarded Carroll nearly $88.3 million across two verdicts. Since then Trump has continued to try to avoid ever having to pay.

The case has bounced around a bunch, and Trump had asked for a do-over in the Second Circuit in the latest round. In rejecting that, one of the judges, who had been a part of the panel for an earlier ruling, described how freaking exhausting all this is:

These are the third and fourth times our Court has voted to deny en banc rehearing of rulings in this case, which concerns defamation and sexual assault claims brought by E. Jean Carroll against Donald Trump. The two per curiam decisions at issue in this round of en banc voting — the fifth and sixth opinions by our Court in this case — arise from two related suits. The first (“Carroll I”) asserted defamation claims based on statements made by Trump in June 2019 while he was President, and the second (“Carroll II”) asserted a sexual assault claim as well as defamation claims based on statements made by Trump in October 2022 after he left office. Although Carroll I was filed first, Carroll II was tried first; in May 2023, the jury in Carroll II found, following a nine-day trial, that Trump sexually abused Carroll at Bergdorf Goodman in 1996 by digitally penetrating her and that he defamed her with comments he made in 2022 after he left office. The jury awarded Carroll $5 million in compensatory and punitive damages, and this Court affirmed, Carroll v. Trump, 124 F.4th 140 (2d Cir. 2024) (per curiam) (“Carroll 4”), and denied rehearing en banc, 141 F.4th 366 (2d Cir. 2025).

Carroll I was tried in January 2024. The jury awarded Carroll $83.3 million in compensatory and punitive damages. On appeal of the judgment, the panel issued two decisions. First, in April 2025, while the appeal was pending and after it had been fully briefed, Trump moved before us to substitute the United States as the defendant under the Westfall Act, 28 U.S.C. § 2679. The panel denied the motion by order last June, and issued an opinion explaining our reasoning in August. Carroll v. Trump, 148 F.4th 110 (2d Cir. 2025) (per curiam) (“Carroll 5”). Second, in September, the panel rejected Trump’s attempt to reassert a defense based on presidential immunity, and affirmed the district court’s rulings and the jury’s damages award. Carroll v. Trump, 151 F.4th 50 (2d Cir. 2025) (per curiam) (“Carroll 6”). It is these two panel rulings — Carroll 5 and Carroll 6 — that are the subject of these en banc petitions.

Trump and the United States have petitioned for rehearing of Carroll 5, and Trump has petitioned for rehearing of Carroll 6. Neither petition identifies how our decisions conflict with precedent of this Circuit, another Circuit, or the Supreme Court, or pose a question of “exceptional importance” justifying en banc review.

Having lost yet again, Trump has now appealed to the Supreme Court — where he’s presumably hoping the Court that handed him sweeping presidential immunity will ride to the rescue again. After all the only two notable exceptions to the Court backing him were specifically economy-related: blocking the firing of Fed members and striking down the illegal tariffs. Protecting Donald from sexual assault and defamation claims doesn’t fit into that bucket.

And, on Tuesday, the DOJ filed a motion with the Supreme Court saying that it is planning to ask to (once again) substitute itself in for Trump as the party under the Westfall Act. If I’m reading all this correctly, in the same case the DOJ is asking to appeal the earlier failure to be able to substitute itself in under the Westfall Act, it’s also still asserting its intent to actually substitute itself in.

Either way, this is a stunningly egregious move by Trump’s DOJ — once again acting as his personal legal fixer rather than a defender of the Constitution and the rule of law. The appeals court has made clear multiple times that he can’t use the Westfall Act to effectively force the case into a position where it must be dismissed, in part because the government waived the argument years ago and it’s too late to try to bring it back. In its ruling last week it explained:

The typicality ended there, as the Westfall issues were then litigated in three courts over the course of four years. … The critical juncture for present purposes was when the Westfall Act issue was presented on remand before the district court in June and July 2023. At that time, the Attorney General expressly declined to issue a Westfall certification or to otherwise seek substitution, and Trump did not take any action with respect to certification or substitution. … see 28 U.S.C. § 2679(d)(3) (allowing the employee to petition for certification where the Attorney General has declined to certify). The Westfall issue lay settled until April 2025, when the Government and Trump revived their efforts to have the United States substituted as the defendant in the case by moving for that relief in this Court….

The Carroll 5 panel denied the Government’s post-trial motion to substitute for three separate reasons: (1) the Government and Trump had waived substitution by failing to request it before the district court prior to trial; (2) the 2025 request was untimely under the Westfall Act; and (3) as a matter of equity in light of the procedural posture of the case. … These rulings were correct as a matter of law and did not warrant en banc review.

Basically: the Attorney General explicitly declined to seek Westfall certification back in 2023, Trump didn’t push back at the time, and the case went to trial and verdict. The Trump DOJ’s obvious counterargument — that a different administration gets a fresh shot at this — isn’t how it works. The waiver belongs to the United States as a party, not to whoever happens to be sitting in the AG’s chair at any given moment. The courts have said so, repeatedly and clearly.

But now it’s heading to a Supreme Court that has already declared Trump immune from basically anything in court, so who the hell knows where it goes.

There’s so much craziness going on right now that this barely registers as a blip. A jury found the President of the United States liable for sexual assault and defaming his victim. He’s been trying to make that verdict disappear for years. Now he’s got the Justice Department helping him. And it’s not even among the five most alarming things involving Donald Trump that day.

Filed Under: 2nd circuit, defamation, doj, donald trump, e. jean carroll, sexual assault, supreme court, westfall act