E. Jean Carroll Brief

Case 20-3977, Document 79, 04/16/2021, 3079961, Page1 of 85
20-3977 L
( )
20-3978(CON)
IN THE
United States Court of Appeals

FOR THE SECOND CIRCUIT
d E. JEAN CARROLL ,
—v.—
Plaintiff-Appellee,
DONALD J. TRUMP , in his personal capacity,

Defendant-Appellant,
UNITED STATES OF AMERICA ,
Movant-Appellant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK
NO. 1:20-CV-07311 (KAPLAN, J.)
BRIEF FOR PLAINTIFF-APPELLEE E. JEAN CARROLL
LEAH LITMAN ROBERTA A. KAPLAN

701 South State Street JOSHUA A. MATZ
Ann Arbor, Michigan 48103 RAYMOND P. TOLENTINO
(734) 647-0549 KAPLAN HECKER & FINK LLP
350 Fifth Avenue, Suite 7110
New York, New York 10118
(212) 763-0883
Counsel for Plaintiff-Appellee
TABLE OF CONTENTS
PAGE
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Trump Sexually Assaults Carroll .................................. 3
B. Carroll Publicly Reveals that Trump Sexually Assaulted

Her . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. Trump Slanders Carroll on Three Separate Occasions . . . . . . . . . . . 6
1. June 21, 2019 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. June 22, 2019 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. June 24, 2019 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. Carroll Files Suit Against Trump in State Court ................. 9

E. The Department of Justice Moves to Substitute . . . . . . . . . . . . . . . . . 10
F. District Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
G. The District Court’s Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
I. THE FTCA DOES NOT COVER THE PRESIDENT . . . . . . . . . . . . . . . . 17
A. The District Court Correctly Held That the President Is

Not an Officer or Employee of the “Executive
Departments” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
i
PAGE
1. The Phrase “The Executive Departments” Refers Only

to Subsidiary Components of the Executive Branch . . . . . . . . 21
2. Statutory Structure Precludes Interpreting

“The Executive Departments” in the FTCA To
Mean “The Executive Branch” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3. The President Is Not an Officer or Employee of

“The Executive Departments” as that Term Is Properly
Interpreted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. The District Court Correctly Held that the President Is Not

Covered by Any Other Language in the FTCA . . . . . . . . . . . . . . . . . . 28
1. Appellants’ Proposed “Literal” Test for Employment
Under the FTCA Cannot be Squared with the Statutory
Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2. Separation-of-Powers Principles Confirm that the
President Is Not Subject to the FTCA’s Wavier of
Sovereign Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
II. TRUMP WAS NOT ACTING WITHIN THE SCOPE OF HIS
EMPLOYMENT WHEN HE WILLFULLY DEFAMED
CARROLL FOR REVEALING THAT HE HAD SEXUALLY
ASSAULTED HER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
A. New York Law Governs the Scope of Employment

Inquiry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
B. An Employee Acts Outside the Scope of Their
Employment When They Act for Personal Reasons to
Obtain a Personal Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
C. Trump Acted Outside the Scope of His Employment as
President in Repeatedly Defaming and Insulting Carroll . . . . . . . 48
1. Presidents May Unquestionably Engage in Personal

Conduct Causing Private Wrongs . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
2. Trump Acted for Personal Reasons in Defaming

Carroll . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ii
PAGE
D. Appellants’ Arguments Rest on Legal and Factual
Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
E. At a Minimum, This Court Should Remand to Allow for

Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
iii
TABLE OF AUTHORITIES
PAGE(S)
Cases
Ali Jaber v. United States,
155 F. Supp. 3d 70 (D.D.C. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Armstrong v. Bush,
924 F.2d 282 (D.C. Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Armstrong v. Thompson,
759 F. Supp. 2d 89 (D.D.C. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47, 54, 61
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Bailey v. J & B Trucking Services, Inc.,
590 F. Supp. 2d 4 (D.D.C. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
BedRoc Ltd. v. United States,
541 U.S. 176 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Bello v. United States,
93 F. App’x 288 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 52
Bergeron v. Henderson,
47 F. Supp. 2d 61 (D. Me. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Blair v. District of Columbia,
190 A.3d 212 (D.C. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 62
Bowles v. United States,
685 F. App’x 21 (2d Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Boykin v. District of Columbia,
484 A.2d 560 (D.C. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Burgess v. United States,
553 U.S. 124 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Chapman v. Rahall,
399 F. Supp. 2d 711 (W.D. Va. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Christopher v. SmithKline Beecham Corp.,
567 U.S. 142 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
iv
PAGE(S)
Clark v. McGee,
49 N.Y.2d 613 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Clinton v. Jones,
520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 56, 57
Cooke v. United States,
918 F.3d 77 (2d Cir. 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Corley v. United States,
556 U.S. 303 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Council on Am.-Islamic Relations v. Ballenger,
366 F. Supp. 2d 28 (D.D.C. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Council on Am.-Islamic Relations v. Ballenger,
444 F.3d 659 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Cromelin v. United States,
177 F.2d 275 (5th Cir. 1949) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Davila v. Lang,
343 F. Supp. 3d 254 (S.D.N.Y. 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Demas v. Levitsky,
291 A.D.2d 653 (3d Dep’t 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 47
Devlin v. United States,
352 F.3d 525 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
District of Columbia v. Bamidele,
103 A.3d 516 (D.C. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 46, 61, 62
District of Columbia v. Coron,
515 A.2d 435 (D.C. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54, 61
Does 1-10 v. Haaland,
973 F.3d 591 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 43, 65
Foretich v. CBS, Inc.,
619 A.2d 48 (D.C. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Foster v. Bork,
425 F. Supp. 1318 (D.D.C. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
v
PAGE(S)
Fountain v. Karim,
838 F.3d 129 (2d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Franklin v. Massachusetts,
505 U.S. 788 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 35, 36
Free Enterprise Fund v. Public Co. Accounting Oversight Bd.,
561 U.S. 477 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Freytag v. Commissioner,
501 U.S. 868 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
George v. N.Y.C. Transit Auth.,
No. 04 Civ. 3263, 2008 WL 4274362 (E.D.N.Y. Sept. 17, 2008) . . . . . . 45
Harlow v. Fitzgerald,
457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Harte-Hanks Commc’ns, Inc. v. Connaughton,
491 U.S. 657 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Heindel v. Bowery Sav. Bank,
138 A.D.2d 787 (3d Dep’t 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Ierardi v. Sisco,
119 F.3d 183 (2d Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Inman v. Dominguez,
371 S.W.3d 921 (Mo. Ct. App. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Island Associated Cooperative Inc. v. Hartmann,
118 A.D.2d 830 (2d Dep’t 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Jacobs v. Vrobel,
724 F.3d 217 (D.C. Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Jones v. Clinton,
72 F.3d 1354 (8th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Jordan v. Medley,
711 F.2d 211 (D.C. Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 48
Klayman v. Obama,
125 F. Supp. 3d 67 (D.D.C. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Littlejohn v. United States,
No. 6:13 Civ. 870, 2013 WL 1840050 (D.S.C. Apr. 9, 2013) . . . . . . . . . 19
vi
PAGE(S)
M.J. Uline Co. v. Cashdan,

171 F.2d 132 (D.C. Cir. 1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 61
Majano v. United States,
469 F.3d 138 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
McNamara v. United States,
199 F. Supp. 879 (D.D.C. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Mohamad v. Palestinian Auth.,
566 U.S. 449 (2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Morissette v. United States,
342 U.S. 246 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
N.X. v. Cabrini Med. Ctr.,
97 N.Y.2d 247 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 45
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Nixon v. Fitzgerald,
457 U.S. 731 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48, 49
Operation Rescue Nat’l v. United States,
147 F.3d 68 (1st Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Operation Rescue Nat’l v. United States,
975 F. Supp. 92 (D. Mass. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65, 70
Overton v. Ebert,
180 A.D.2d 955 (3d Dep’t 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 48, 62
Penn Cent. Transp. Co. v. Reddick,
398 A.2d 27 (D.C. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 48, 54, 61
Perks v. Town of Huntington,
251 F. Supp. 2d 1143 (E.D.N.Y. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Pietrangelo v. Wilmer Cutler Pickering Hale & Dorr, LLP,
68 A.3d 697 (D.C. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Pohlman v. Village of Freeport,
No. 19 Civ. 5277, 2020 WL 5878257 (E.D.N.Y. Sept. 30, 2020) . . . . . . 45
Rausman v. Baugh,
248 A.D.2d 8 (2d Dep’t 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 47, 48
vii
PAGE(S)
Richards v. United States,

369 U.S. 1 (1962) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Rivera v. State,
34 N.Y.3d 383 (2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 60, 63
Riviello v. Waldron,
47 N.Y.2d 297 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Ross v. Mitsui Fudosan, Inc.,
2 F. Supp. 2d 522 (S.D.N.Y. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 48, 56
Russello v. United States,
464 U.S. 16 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
S.D. Warren Co. v. Maine Bd. of Env’t Prot.,
547 U.S. 370 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Saleh v. Bush,
848 F.3d 880 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Samantar v. Yousuf,
560 U.S. 305 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Seila Law LLC v. C.F.P.B.,
140 S. Ct. 2183 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 48
Shaughnessy v. United States ex rel. Mezei,
345 U.S. 206 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Stenberg v. Carhart,
530 U.S. 914 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Stokes v. Cross,
327 F.3d 1210 (D.C. Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Stone v. I.N.S.,
514 U.S. 386 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 31
Swarna v. Al-Awadi,
622 F.3d 123 (2d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Trump v. Hawaii,
138 S. Ct. 2392 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Trump v. Mazars USA, LLP,
140 S. Ct. 2019 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 39
viii
PAGE(S)
Trump v. Vance,
140 S. Ct. 2412 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 49
United States v. Burr,
25 F. Cas. 30 (Va. Cir. Ct. 1807) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
United States v. Germaine,
99 U.S. 508 (1878) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
United States v. Jicarilla Apache Nation,
564 U.S. 162 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Smith,
499 U.S. 160 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
West v. Trump,
No. 19 Civ. 2522, 2020 WL 4721291 (N.D. Tex. July 23, 2020) . . . . . . 19
Weyrich v. New Republic Inc.,
235 F.3d 617 (D.C. Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Williams v. United States,
71 F.3d 502 (5th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 65
Wilson v. Libby,
535 F.3d 697 (D.C. Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Wuterich v. Murtha,
562 F.3d 375 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Constitutional Provisions
U.S. Const., art. II, § 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
U.S. Const., art. II, § 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Statutes
5 U.S.C. § 1 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5 U.S.C. § 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 26
5 U.S.C. § 693 (1940 ed. Supp. 1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ix
PAGE(S)
5 U.S.C. § 693 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 34

28 U.S.C. § 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 21, 26
28 U.S.C. § 517 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
28 U.S.C. § 1346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 10, 13, 18
28 U.S.C. § 2671 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
28 U.S.C. § 2679 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Act of Aug. 7, 1789, ch. 8, 1st Cong. 49-50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Act of July 27, 1789, ch. 4, 1st Cong. 28-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Pub. L. No. 79-404, § 2(a), 60 Stat. 237 (1946) . . . . . . . . . . . . . . . . . . . 33, 35, 37
Pub. L. No. 89-506, § 8, 80 Stat. 306 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pub. L. No. 97-124, § 1, 95 Stat. 1666 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pub. L. No. 100-694, § 3, 102 Stat. 4563 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Pub. L. No. 106-518, § 401, 114 Stat. 2421 (2000) . . . . . . . . . . . . . . . . . . . . . . . 30
Executive and Legislative Authorities

28 C.F.R. § 50.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Application of 28 US.C. § 458 to Presidential Appointments of
Federal Judges, 19 Op. O.L.C. 350, 1995 WL 1767997 (1995) . . . . . . . 37
Civ. Serv. Comm’n-Time of Lab.,
22 Op. Att’y Gen. 62, 1898 WL 438 (1898) . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Eligibility of Mr. Mellon for the Off. of Sec’y of the Treasury,
36 Op. Att’y Gen. 12, 1929 WL 1712 (1929) . . . . . . . . . . . . . . . . . . . . . . . . . 22
Federal Tort Claims Act—Applicability to Agencies in Other Than
Executive Branch of Government, 26 Comp. Gen. 891 (1947) . . . . . . . . . 32
H.R. Rep. No. 100-700 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Matter of Claiborne Pell, U.S. Senate,
B-199413, 1980 WL 16158 (Aug. 11, 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Operation of the Twenty-Fifth Amend. Respecting Presidential
Succession, 9 Op. O.L.C. 65, 1985 WL 185391 (1985) . . . . . . . . . . . . . . . . 22
x
PAGE(S)
Presidential Succession & Delegation in Case of Disability,

5 Op. O.L.C. 91, 1981 WL 30883 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Rel. of the President to the Exec. Departments.,
7 Op. Att’y Gen. 453, 1855 WL 2328 (1855) . . . . . . . . . . . . . . . . . . . . . . . . . 22
S. Rep. No. 89-1327 (1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Other Authorities
2 J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) . . . . . . . . 49
Br. for Appellant United States, Wilkinson v. Legal Servs. Corp.,
1995 WL 17204605 (D.C. Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Br. for the Appellants, Mironescu v. Costner,
2006 WL 1558336 (4th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Br. for the U.S. as Amicus Curiae, Trump v. Mazars USA, LLP,
No. 19-715, 2020 WL 563912 (U.S. Feb. 3, 2020) . . . . . . . . . . . . . . . . . . . . 38
Gillian Metzger, The Constitutional Duty to Supervise,
124 Yale L.J. 1836 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Gov’t Defs. Notice of Mot. and Mot. to Dismiss and for Summ. J,
Jewel v. Nat’l Sec. Agency, 2012 WL 6218080 (N.D. Cal. 2012) . . . . . . 38
Jordan Fabian & Saagar Enjeti, EXCLUSIVE: Trump Vehemently
Denies E. Jean Carroll Allegation, Says “She’s Not My Type,”
The Hill (June 24, 2019) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Katie Benner, Trump and Justice Dept. Lawyer Said to Have Plotted
to Oust Acting Attorney General, N.Y. Times (Jan. 22, 2021) . . . . . . . . . 11
Katie Benner & Charlie Savage, White House Asked Justice Dept. to
Take Over Defamation Suit Against Trump, Barr Says,
N.Y. Times (Sept. 9, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Mot. to Dismiss, District of Columbia v. Trump,
No. 17 Civ. 1596, 2017 WL 7587415 (Sept. 29, 2017) . . . . . . . . . . . . . . . . 50
Murray Waas, Revealed: White House Liaison Sought Derogatory Info
on E. Jean Carroll from DOJ Official, The Guardian
(Jan. 14, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
xi
PAGE(S)
Pet. for Writ of Cert., Trump v. Knight First Amendment Institute,

No. 20-197 (U.S. Aug. 20, 2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Pet. Reply Br., In re Donald J. Trump,
No. 20-331, 2020 WL 7681471 (U.S. Sept. 2020) . . . . . . . . . . . . . . . . . . . . . 38
Reply Br., Blumenthal v. Trump,
No. 19-5237, 2019 WL 5727504 (D.C. Cir. Nov. 5, 2019) . . . . . . . . . . . . 37
Restatement (Second) of Agency (1958) . . . . . . . . . . . . . . . . . . . . . . . 44, 45, 54, 62
xii
INTRODUCTION
In June 2019, E. Jean Carroll revealed that former President Donald J. Trump
had sexually assaulted her decades earlier. Trump denied it, saying he did not know
who Carroll was and had never met her. But he did not stop there. He launched a
series of vicious, personal attacks. He implied that she was too ugly to rape; that she
had falsely accused other men of sexual assault; and that she had invented her story
for money, or to sell books, or to advance a political plot. None of this was true.
Trump knew that he had assaulted Carroll. He knew who she was. And he knew
what he was doing when he went on a defamation rampage designed to crush her—
to punish and retaliate against her—for daring to reveal his decades-old crime.
Faced with this staggering onslaught, Carroll sought relief in court and sued
Trump for defamation. Her case proceeded in New York state court for ten months.
Trump did everything he could to stall, but his efforts ultimately failed. Just as the
parties were about to engage in merits discovery, the White House prevailed upon
the Department of Justice (DOJ) to intercede. Following a certification under the
Westfall Act, 28 U.S.C. § 2679(d), DOJ lawyers removed the case to federal court
and sought to substitute the United States as the defendant. They took the position
that Trump was just doing his job—i.e., that he was acting within the scope of his
employment—when he repeatedly slandered a private citizen who was no longer
willing to hide the fact that he had raped her long before taking office.
1
On two separate grounds, Judge Kaplan denied DOJ’s motion to substitute.
He first held that the statute invoked by DOJ in support of substitution—the Federal
Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671, as amended by the Westfall
Act—does not apply to the President. That conclusion is compelled by the FTCA’s
text and structure, as well as a host of constitutional, legislative, and judicial
authorities, all of which confirm that the FTCA does not apply to the President. On
appeal, DOJ (joined by Trump) seeks to show otherwise, but their arguments make
a mess of the statute and offend settled separation-of-powers principles.
In the alternative, Judge Kaplan concluded Trump was not acting within the
scope of his employment when he defamed Carroll. This commonsense conclusion
follows directly from the evidence before the Court and from longstanding principles
of respondeat superior liability. On appeal, DOJ and Trump offer no basis to disturb
that finding. Indeed, there is almost nothing in their briefs that discusses the facts at
all. Instead, they urge the Court to adopt a new rule that would create categorical
immunity for any federal official who defames anyone while speaking to the press
or responding to perceived critics. That rule is both wrong and dangerous, and this
Court should reject Appellants’ effort to avoid answering for Trump’s conduct.
“Public office does not carry with it a license to defame at will, for even the
highest officers exist to serve the public, not to denigrate its members.” Clark v.
McGee, 49 N.Y.2d 613, 618-19 (1980). If accepted, Appellants’ extreme position
2
would distort precedent, dishonor the Office of the Presidency, and give succor to
the view that our most powerful political leaders stand entirely above the law. This
Court should therefore affirm the denial of DOJ’s motion to substitute.
STATEMENT OF THE ISSUES
1. Is the President an “employee of the government” as that term is
defined in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671?
2. Assuming the President is an “employee of the government” under the
FTCA, did Donald J. Trump act within the scope of his employment when he
subjected E. Jean Carroll to willful, outrageous defamatory attacks in retaliation for
revealing that he had sexually assaulted her decades before he was elected President?
STATEMENT OF THE CASE
A. Trump Sexually Assaults Carroll
One evening in the mid-1990s, Carroll went to shop at the Bergdorf Goodman
department store in Manhattan after work. A28 ¶ 22. 1 As she was exiting through
the revolving glass doors on the north side of the building, Trump entered through
the same doors from 58th Street. A28 ¶ 23. Trump recognized Carroll—they had
met at least once before, they traveled in similar circles, and Carroll was then a
frequent guest on the Today show as well as the host of the Ask E. Jean show. A28
1
Citations to “A_” are to pages of the Joint Appendix. Citations to “SPA_” are to
the Special Appendix attached to DOJ’s brief.
3
¶ 24. Trump put his hand up to stop Carroll, saying: “Hey, you’re that advice lady!”
A28 ¶ 25. Trump told Carroll that he was at Bergdorf’s to buy a present “for a girl”
and asked Carroll to advise him. A28 ¶ 26. Carroll was surprised by the unsolicited
invitation, but thought the encounter might make for a funny story. Id. So she agreed
to help Trump shop for a gift. Id.
Carroll suggested various items: first a handbag, then a hat. A28 ¶ 27. Trump
decided on lingerie. A29 ¶ 29. When he and Carroll arrived at the lingerie
department, it was uncharacteristically empty, with no attendant in sight. A29 ¶ 30.
Trump snatched a see-through bodysuit and insisted that Carroll try it on. A29 ¶¶ 30-
31. Bemused, Carroll responded that he should try it on himself. A29 ¶ 31. Trump
and Carroll went back and forth, teasing each other about who should try on the
bodysuit. Id.
Suddenly, Trump grabbed Carroll’s arm and said, “Let’s put this on.” A29
¶ 32. He maneuvered Carroll into a dressing room, shut the door, and lunged at her—
knocking her head against the wall. A29 ¶¶ 33-36. He then forcibly put his mouth
on her lips. A29 ¶ 36. Shocked by Trump’s behavior, Carroll shoved him back and
burst out in awkward laughter, hoping that he would retreat. A29 ¶ 37. Instead,
Trump seized both of Carroll’s arms and pushed her up against the wall again. A29
¶ 38. Trump then jammed his hand under her coatdress and pulled down her tights.
Id. He opened his overcoat, unzipped his pants, pushed his fingers around Carroll’s
4
genitals, and forced his penis inside of her. A30 ¶ 39. Carroll resisted, struggling to
break free. She tried to stomp Trump’s foot with her heels. She tried to push him
away. Finally, she raised her knee high enough to push him off her. A30 ¶ 40. Carroll
ran out of the dressing room, out of Bergdorf’s, and onto Fifth Avenue. A30 ¶ 41.
B. Carroll Publicly Reveals that Trump Sexually Assaulted Her
Immediately after Trump attacked her, Carroll told two close friends about
what had happened. A30 ¶¶ 43, 47. One urged her to report the crime, but the other
warned her that Trump would ruin her life if she did. A30-31 ¶¶ 44-48. Carroll chose
silence. She knew how brutal Trump could be and was convinced that nobody would
believe her. Like so many other survivors of sexual assault, Carroll also blamed
herself. A31 ¶¶ 49-50. Carroll did not mention the assault to another soul for over
twenty years—not wanting to be perceived or to see herself as a victim of rape. A31
¶ 53.
For the next two decades, Carroll pursued her career as a writer and advice
columnist while concealing her own trauma. A32 ¶ 55, A33 ¶¶ 59-60. During the
last month of the 2016 election, several women publicly revealed that Trump had
engaged in sexual misconduct. A33 ¶ 61. Carroll saw Trump attack his accusers,
savaging their reputations on the national stage. Id. During this period, though,
Carroll was focused on attending to her dying mother, who was then in hospice care.
A33 ¶ 62. Carroll feared that speaking up would cause a media storm and destroy
5
her mother’s remaining time. Id. It was only after her mother died and the #MeToo
movement empowered survivors of sexual assault to come forward that Carroll
finally decided to reveal the truth. A34-36 ¶¶ 65-73. A writer to her core, and
determined to tell her story on her own terms, Carroll described Trump’s attack in a
book released on July 2, 2019. A37 ¶¶ 77, 80. On June 21, 2019, New York magazine
published a pre-publication excerpt from Carroll’s book detailing Trump’s attack.
A37 ¶ 79.
C. Trump Slanders Carroll on Three Separate Occasions
Trump responded to Carroll’s account with a slew of lies and personal attacks.
He denied her accusation and insisted they had never met. A38-A42 ¶¶ 81-96. He
insulted her physical appearance, implying that he could not have raped her because
“she’s not my type.” A42 ¶ 97. He accused Carroll of lying about the rape to make
money, increase book sales, or carry out a political agenda. A26 ¶ 11, A38 ¶ 82. He
also pointedly implied that she had falsely accused other men of rape. A40 ¶ 91, A41
¶ 95. Trump made each of these false and defamatory statements with actual malice:
he acted with full awareness that he was lying and with depraved indifference to the
truth. A44-48 ¶¶ 106-128. His goal was to hurt Carroll as punishment and retaliation
for speaking up. And he succeeded.
6
1. June 21, 2019 Statement
On June 21, 2019, a Bloomberg reporter, Laura Litvan, tweeted a statement
from Trump concerning Carroll; the statement appeared to be personally dictated
and was released on a plain document lacking any indicia of government business:
A327; see A38 ¶¶ 82-83 & n.9.
7
The next day, while departing the White House, Trump made the following
statement in response to a question from a reporter:
[Trump]: I have no idea who this woman is. This is a woman who has
also accused other men of things, as you know. It is a totally false
accusation. I think she was married—as I read; I have no idea who she
is—but she was married to a, actually, nice guy, Johnson—a
newscaster.
[Reporter]: You were in a photograph with her.
[Trump]: Standing with coat on in a line—give me a break—with my

back to the camera. I have no idea who she is. What she did is—it’s
terrible, what’s going on. So it’s a total false accusation and I don’t
know anything about her. And she’s made this charge against others.
And, you know, people have to be careful because they’re playing with
very dangerous territory. And when they do that—and it’s happening
more and more. When you look at what happened to Justice Kavanaugh
and you look at what’s happening to others, you can’t do that for the
sake of publicity.
New York Magazine is a failing magazine. It’s ready to go out of

business, from what I hear. They’ll do anything they can. But this was
about many men, and I was one of the many men that she wrote about.
It’s a totally false accusation. I have absolutely no idea who she
is. There’s some picture where we’re shaking hands. It looks like at
some kind of event. I have my coat on. I have my wife standing next to
me. And I didn’t know her husband, but he was a newscaster. But I have
no idea who she is—none whatsoever.
It’s a false accusation and it’s a disgrace that a magazine like New
York—which is one of the reasons it’s failing. People don’t read it
anymore, so they’re trying to get readership by using me. It’s not good.
You know, there were cases that the mainstream media didn’t pick
up. And I don’t know if you’ve seen them. And they were put on
8
Fox. But there were numerous cases where women were paid money to
say bad things about me. You can’t do that. You can’t do that. And
those women did wrong things—that women were actually paid money
to say bad things about me.
But here’s a case, it’s an absolute disgrace that she’s allowed to do that.
A40-41 ¶ 91.
Two days later, during an interview with reporters from The Hill, Trump
stated, “I’ll say it with great respect: Number one, she’s not my type. Number two,
it never happened. It never happened, OK?” A42 ¶ 97. 2
D. Carroll Files Suit Against Trump in State Court
Carroll filed this action in New York State Supreme Court in November 2019
to redress the injuries caused by Trump’s defamatory statements and to vindicate her
reputation through a public airing of the truth. A24.
From the very start, however, Trump has done everything in his power to stop
the truth from coming out. He refused to accept service of the Complaint, A99-112,
then moved to dismiss based on his spurious assertion that he was no longer subject
to personal jurisdiction in New York, see A154. When those efforts failed, Trump
moved to stay the action pending a decision on his absolute immunity in Zervos v.
Trump—a case involving another woman who had accused Trump of sexual assault.
2
Jordan Fabian & Saagar Enjeti, EXCLUSIVE: Trump Vehemently Denies E. Jean
Carroll Allegation, Says “She’s Not My Type,” The Hill (June 24, 2019).
9
See A171-88. Notably, Trump’s motion was filed just six days after Carroll served
a request seeking a cheek swab for DNA to be compared against unidentified male
DNA found on the dress that Carroll was wearing when Trump sexually assaulted
her. A206, A171. On August 6, 2020, the trial court held that Trump was not entitled
to absolute immunity under Trump v. Vance, 140 S. Ct. 2412 (2020), and denied his
pending stay motion on that basis. A303-06. Trump and his lawyers spent the next
four weeks stonewalling Carroll’s efforts to resume discovery while communicating
Trump’s intent to litigate Carroll’s claims on appeal in state court. See A362-90.
E. The Department of Justice Moves to Substitute
On September 8, 2020—the deadline for Trump to appeal the denial of his
stay motion—DOJ removed this case to federal district court and moved to substitute
the United States as defendant. A12-13, A19-22. The hook for this maneuver was
the FTCA, which allows the United States to be sued for money damages in federal
district court for certain torts committed by an “employee of the Government while
acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). If a
plaintiff sues such an employee instead of suing the United States, the United States
may substitute itself for that employee upon the Attorney General’s certification that
the employee was “acting within the scope of his office or employment at the time
of the incident out of which the claim arose.” 28 U.S.C. § 2679(d)(2).
10
The Attorney General subsequently acknowledged that DOJ filed its motion
in response to a request from the White House. See Katie Benner & Charlie Savage,
White House Asked Justice Dept. to Take Over Defamation Suit Against Trump, Barr
Says, N.Y. Times (Sept. 9, 2020). No facts in the case had changed at that point. The
only thing that made September 8, 2020 different from the prior ten months was that
by then, all of Trump’s state court stall tactics, procedural gambits, and assertions of
immunity had failed. Further confirming that DOJ’s decision was undertaken as a
political errand to personally benefit Trump, it has since been reported that a White
House liaison to DOJ “sought out derogatory information late last year from a senior
justice department official regarding [Carroll].” Murray Waas, Revealed: White
House Liaison Sought Derogatory Info on E. Jean Carroll from DOJ Official, The
Guardian (Jan. 14, 2021). It has also been reported that the official who provided
this irregular, late-in-the-day FTCA certification—Jeffrey Clark—schemed with
Trump in late 2020 to oust the Attorney General and block the results of the
presidential election. See Katie Benner, Trump and Justice Dept. Lawyer Said to
Have Plotted to Oust Acting Attorney General, N.Y. Times (Jan. 22, 2021).
F. District Court Proceedings
The district court scheduled an in-person oral argument for October 21, 2020.
A391. Two hours before that argument, DOJ sought an indefinite continuance
because one DOJ attorney had been denied access to the Daniel Patrick Moynihan
11
courthouse, assertedly based on COVID-19 restrictions. A414. The district court
promptly denied the continuance, ruling that it would hear argument by phone or by
a government lawyer permitted entry to the courthouse, or that it would decide the
motion on the papers. A420. The district court also noted that the relevant COVID-
19 restrictions had been announced over a week earlier. Id.
Carroll’s counsel was present in person and prepared to proceed. A417. DOJ
appeared by telephone but, without explanation, declined to present argument and
asked the court to rule on the papers. Id. When Carroll’s counsel requested the
opportunity to submit a sur-reply to rebut new arguments raised in DOJ’s reply, DOJ
objected but then expressly agreed that it would waive these new contentions. Id.
G. The District Court’s Ruling
Judge Kaplan denied DOJ’s motion to substitute on two independent grounds.
First, he held that the FTCA did not apply to Trump, since the President is not an
“employee of the government” within the meaning of the FTCA, which contains
detailed definitional terms. SPA16-35. Judge Kaplan reached this conclusion on the
basis of a meticulous textual analysis and an application of the separation-of-powers
principles articulated in Franklin v. Massachusetts, 505 U.S. 788 (1992).
Second, in the alternative, Judge Kaplan concluded that even if the FTCA did
apply to the President, Trump had acted outside the scope of his employment in
willfully and repeatedly defaming Carroll. SPA40-41, SPA59-61. As Judge Kaplan
12
explained, doctrines of respondeat superior liability confirm that an employee does
not act within the scope of his employment when his conduct is “too little actuated
by a purpose to serve the master.” SPA48. And here, he elaborated, “the undisputed
facts demonstrate that President Trump was not acting in furtherance of any duties
owed to any arguable employer when he made the statements at issue.” SPA60.
Both DOJ and Trump filed notices of appeal. A421-23.
STANDARD OF REVIEW
This Court reviews the district court’s legal conclusions regarding DOJ’s
motion to substitute de novo and its factual findings for clear error. Bowles v. United
States, 685 F. App’x 21, 24 (2d Cir. 2017). In undertaking that review, this Court
must view “the tortious conduct in the light most favorable to plaintiff.” Bello v.
United States, 93 F. App’x 288, 289-90 (2d Cir. 2004).
SUMMARY OF ARGUMENT
The district court’s decision denying DOJ’s motion to substitute should be
affirmed for two independent reasons.
I. The FTCA’s text and structure, as well as separation-of-powers principles,
confirm that it does not cover the President. The FTCA applies only to an “employee
of the Government.” 28 U.S.C. § 1346(b)(1). That term is defined to “include”—
among other groups—officers and employees of “any federal agency.” Id. § 2671.
And “federal agency” is defined as including “the executive departments,” as well
13
as “the judicial and legislative branches.” Id. None of these definitions state that the
FTCA covers the President—a significant omission in its own right, since Congress
is not presumed to pass laws that apply to the President only by indirect implication.
Appellants offer two contrary arguments. First, they assert that the FTCA
covers the President expressly in its reference to “executive departments”—which,
they add, refers generally to “the executive branch.” But that reading of the statutory
term “executive departments” is untenable. Title 28 contains a presumption that this
term refers only to Cabinet-level agencies. See 28 U.S.C. § 451. And that
presumption is not overcome here. Substantial judicial and executive branch
precedent affirms that “the executive departments” include only Cabinet-level
agencies and a small number of additional freestanding components of the executive
branch. Further, interpreting “the executive departments” to mean “the executive
branch” creates disorder, superfluity, and inconsistency within the FTCA’s statutory
definitions. In referring separately to “the judicial and legislative branches” and “the
executive departments,” the FTCA draws a distinction that controls here. Of course,
history teaches that the President is not himself an officer or employee of any
subsidiary component of the executive branch, and so the FTCA cannot apply to the
Presidency by virtue of its express application to “the executive departments.”
This leaves Appellants’ claim that the President is an “employee of the
Government” in a more “literal” sense: he receives money in exchange for services.
14
The basic flaw in this argument is that it renders most of the FTCA’s definitional
language, as well as numerous amendments to that language over the past half-
century, entirely superfluous. Appellants’ position also fails to respect the FTCA’s
text and structure, which demonstrate that the FTCA’s definitional terms do real,
substantive work in clarifying where the law applies, and which terms encompass
subsidiary components of the executive branch while pointedly not including the
President. This interpretation is confirmed—indeed, compelled—by separation-of-
powers principles. As DOJ has itself emphasized elsewhere, courts require a clear,
express statement by Congress before interpreting a federal law to authorize judicial
review of the President’s conduct. The FTCA includes no such clear statement—yet,
on Appellants’ view, it waives sovereign immunity and allows courts to hear claims
that put the President’s conduct directly at issue. For that reason, the Court should
reject Appellants’ atextual invitation to read the President into the FTCA.
II. In the alternative, the Court should affirm on the ground that Trump did
not act within the scope of his employment as President of the United States when
he repeatedly, willfully defamed a private citizen to punish and retaliate against her
after she revealed that he had sexually assaulted her decades before he took office.
This inquiry is governed by the doctrine of respondeat superior. The better
view is that New York doctrine controls, though the outcome is the same under either
New York or D.C. law. In both jurisdictions, it is settled that an employee exceeds
15
the scope of their employment if their actions are too little actuated by a purpose to
serve the master, and instead reflect principally personal or private motivations. This
rule is often invoked in cases involving sexual misconduct or a desire for revenge,
particularly when an employee’s tortious acts are outrageous or otherwise sharply
disproportionate to the needs of their position. By virtue of their willful nature, the
commission of intentional torts is also a recognized sign of personal motivation.
Here, Judge Kaplan correctly concluded that Trump acted outside the scope
of his employment. It is firmly established that a president can act with personal
motivations, and can commit private wrongs while in office. Indeed, Trump himself
insisted in numerous cases over the past several years that he had acted solely for
personal rather than job-related reasons. Looking to the particularized allegations
here—which must be accepted as true and read in Carroll’s favor—it is clear that
Trump’s attack on Carroll was personal, not presidential. That conclusion follows
directly from the allegations of Trump’s willful, punitive, retaliatory state of mind.
And it is supported by four additional considerations: first, the extraordinary and
outrageous nature of Trump’s efforts to degrade and destroy Carroll; second, the fact
that Trump committed a multi-day spree of intentional torts in which he targeted her
with willful lies; third, the subject matter that prompted Trump’s attacks, which had
nothing to do with public policy or administration and exclusively concerned private
sexual misconduct committed decades ago; and finally, the consistency of Trump’s
16
conduct here with his reaction as a private citizen to allegations of sexual assault,
which confirms that he was following his own longstanding playbook when he went
after Carroll, rather than pursuing official purposes or his duties as President.
Appellants say almost nothing about all this. Instead, they press a breathtaking
claim: whenever an elected federal official (or indeed any senior federal official)
speaks to the press or responds to critics, they must be held to have acted within the
scope of their employment. In Appellants’ view, this immunity is categorical and
does not depend on the specific facts, circumstances or evidence of any case.
That theory is indefensible. It is inconsistent with the settled law of respondeat
superior liability. It finds no support in precedent—if anything, it implies that the
detailed, fact-sensitive analysis in many prior cases was a needless exercise. And it
reflects a disturbing belief that federal officials should have free rein to destroy the
reputations and livelihoods of any perceived critic—no matter how unrelated to the
business of governance, and no matter how personal their motives for doing so. That
has never been—and never should be—the law in the United States. Judge Kaplan
rightly rejected Appellants’ arguments, and this Court should affirm.
ARGUMENT
I. THE FTCA DOES NOT COVER THE PRESIDENT
The threshold question in this case is whether the FTCA applies to the
President. To answer that question, the Court “begins with the statutory text”—and
17
it should end there as well, because “the text is unambiguous.” BedRoc Ltd. v. United
States, 541 U.S. 176, 183 (2004). Indeed, fidelity to the statutory text is especially
paramount in construing a statute that waives the sovereign immunity of the United
States. Cooke v. United States, 918 F.3d 77, 81 (2d Cir. 2019).
The FTCA’s waiver of sovereign immunity is expressly limited to “any
employee of the Government.” 28 U.S.C. § 1346(b)(1). Congress gave that phrase a
detailed definition in 28 U.S.C. § 2671. And “[w]hen a statute includes an explicit
definition, [courts] must follow that definition.” Burgess v. United States, 553 U.S.
124, 129 (2008) (quoting Stenberg v. Carhart, 530 U.S. 914, 942 (2000)).
For purposes of the statute, an “employee of the Government”:
includes (1) officers or employees of any federal agency, members of

the military or naval forces of the United States, members of the
National Guard while engaged in training or duty . . . , and persons
acting on behalf of a federal agency in an official capacity, temporarily
or permanently in the service of the United States, whether with or
without compensation, and (2) any officer or employee of a Federal
public defender organization, except when such officer or employee
performs professional services in the course of providing representation
under section 3006A of title 18.
28 U.S.C. § 2671. The term “federal agency” in this definition “includes the
executive departments, the judicial and legislative branches, the military
departments, independent establishments of the United States, and corporations
primarily acting as instrumentalities or agencies of the United States, but does not
include any contractor with the United States.” 28 U.S.C. § 2671.
18
The President is nowhere mentioned in these definitional provisions. That is
a telling omission: Congress does not “hide elephants in mouseholes,” Whitman v.
Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001), and it does not hide presidents in
generic definitional terms (or in their penumbras). As Judge Kaplan observed, “it is
difficult to fathom that Congress—without any textual indication, and with
considerable evidence to the contrary—intended for the FTCA to authorize tort
lawsuits that bring the president’s official conduct into question.” SPA32.
To be sure, some courts have suggested otherwise in unreasoned opinions 3 or
in cases that did not actually present the question. 4 See DOJ Br. 16; Trump Br. 9, 15.
But as Judge Kaplan concluded following an exhaustive analysis of the statute’s text,
structure, and history, the FTCA simply does not cover the President.
Appellants resist that conclusion on two grounds. First, they argue that the
FTCA expressly covers the President by virtue of its application to officers and
employees of “the executive departments.” Second, they insist that the FTCA applies
3
See Saleh v. Bush, 848 F.3d 880, 891 (9th Cir. 2017); Ali Jaber v. United States,
155 F. Supp. 3d 70, 73 n.1 (D.D.C. 2016), aff’d, 861 F.3d 241 (D.C. Cir. 2017);
Klayman v. Obama, 125 F. Supp. 3d 67, 84-85 (D.D.C. 2015); West v. Trump, No.
19 Civ. 2522, 2020 WL 4721291, at *3 n.6 (N.D. Tex. July 23, 2020); Littlejohn v.
United States, No. 6:13 Civ. 870, 2013 WL 1840050 (D.S.C. Apr. 9, 2013), report
and recommendation adopted, 2013 WL 1840025 (D.S.C. Apr. 30, 2013).
4
Operation Rescue Nat’l v. United States, 147 F.3d 68, 70-71 (1st Cir. 1998); Does
1-10 v. Haaland, 973 F.3d 591, 598 (6th Cir. 2020).
19
more broadly to anyone who is an employee of the government in a literal sense
(receiving money in exchange for services). Neither argument withstands scrutiny.
A. The District Court Correctly Held That the President Is Not an

Officer or Employee of the “Executive Departments”
Appellants contend that the President is expressly covered by the FTCA
because he is an “officer or employee” of “the executive departments.” See DOJ Br.
17-20; Trump Br. 23-28. In support of that position, Appellants assert that the phrase
“executive departments” should be read as referring to “the executive branch”
generally. See id. As Judge Kaplan concluded, however, this argument does not hold
water. That is true for two overlapping reasons: first, the phrase “the executive
departments” has long been understood as possessing a much narrower compass;
and second, reading the statute as Appellants propose makes a mess of its text,
history, and structure. The better reading is that the FTCA’s reference to “the
executive departments” extends its coverage to officers and employees of Cabinet-
level agencies, and perhaps a small number of additional freestanding components
within the executive branch, but not to the executive branch in its entirety. Of course,
the President is not an officer or employee of any subsidiary component of the
executive branch. Therefore, the reference to “the executive departments” in 28
U.S.C. § 2671 affords no basis for treating the President as covered by the FTCA.
20
1. The Phrase “The Executive Departments” Refers Only to

Subsidiary Components of the Executive Branch
When Congress uses language rich with history and significance in our legal
traditions, courts presume it knows what it is doing. See, e.g., Morissette v. United
States, 342 U.S. 246, 263 (1952). Appellants proceed with the opposite presumption.
They treat the FTCA’s reference to “the executive departments” as a wishy-washy,
open-ended gesture referring imprecisely to the whole executive branch.
That is the wrong way to interpret statutory text. Instead, the best starting point
is a careful examination of statutory language and structure. Here, this leads straight
to 28 U.S.C. § 451, which creates a global presumption that whenever the word
“department” appears in Title 28 of the U.S. Code, it should be given the definition
set forth in 5 U.S.C. § 101. That provision, in turn, expressly defines “executive
departments” as referring only to Cabinet-level agencies in the executive branch.
This understanding of “the executive departments” is deeply rooted in our
legal tradition. Although there were fewer Cabinet departments when the FTCA was
enacted in 1946, the U.S. Code set forth an analogous definition of “executive
departments” at that time. See 5 U.S.C. § 1 (1946). Indeed, this usage of the term
“executive departments” stretches back to the First Congress, which created the
“Executive department[s]” of Foreign Affairs and War. Act of July 27, 1789, ch. 4,
1st Cong. 28-29; Act of Aug. 7, 1789, ch. 8, 1st Cong. 49-50. Consistent with that
history, the Supreme Court has interpreted “executive departments” in the Opinions
21
Clause and Twenty-Fifth Amendment of the Constitution as referring solely to
Cabinet-level agencies. See Freytag v. Commissioner, 501 U.S. 868, 886-87 (1991);
United States v. Germaine, 99 U.S. 508, 511 (1878). DOJ itself has also understood
“the executive departments” to refer to Cabinet-level agencies in a wide range of
settings, and the White House website reflects that understanding. See SPA24-26. 5
We have not found—and Appellants do not cite—any Supreme Court opinion
defining “the executive departments” as “the executive branch.” Instead, DOJ relies
principally on Free Enterprise Fund v. Public Company Accounting Oversight
Board, 561 U.S. 477 (2010) (PCAOB). See DOJ Br. 18. But PCAOB only confirms
the need for caution when dealing with definitional terms like this one. There, the
Supreme Court ever-so-slightly expanded its interpretation of the term “department”
as it pertains to the Appointments Clause, extending it beyond Cabinet agencies to
cover the SEC (and other so-called principal agencies). See 561 U.S. at 511. It did
so, however, following a close study of prior practice and original understanding
relating specifically to appointments—drawing from these authorities the lesson that
the SEC ranks as a “department” because it is “a freestanding component of the
5
See Operation of the Twenty-Fifth Amend. Respecting Presidential Succession, 9
Op. O.L.C. 65, 69, 1985 WL 185391 (1985); Presidential Succession & Delegation
in Case of Disability, 5 Op. O.L.C. 91, 92, 1981 WL 30883 (1981); Eligibility of Mr.
Mellon for the Off. of Sec’y of the Treasury, 36 Op. Att’y Gen. 12, 13, 1929 WL
1712 (1929); Civ. Serv. Comm’n-Time of Lab., 22 Op. Att’y Gen. 62, 63, 1898 WL
438 (1898); Rel. of the President to the Exec. Departments., 7 Op. Att’y Gen. 453,
463, 1855 WL 2328 (1855).
22
Executive Branch.” Id. Further narrowing its holding, PCAOB pointedly separated
the Appointments Clause from the Opinions Clause and the Twenty-Fifth
Amendment for purposes of defining “executive departments.” See id. at 511 n.11.
The upshot of PCAOB is that courts tread gingerly before concluding that a reference
to “the executive departments” sweeps beyond Cabinet-level agencies.
For all these reasons, the FTCA’s reference to “the executive departments” is
not nearly as broad as Appellants suggest. Based on statutory text and structure, as
well as executive and judicial precedent, this phrase generally refers only to Cabinet-
level agencies. In certain cases (like PCAOB), prior practice and usage may support
extending the phrase slightly to cover certain freestanding components within the
executive branch. But our legal traditions teach that this is the outer limit—
especially where, as here, reading the phrase as impliedly encompassing the entire
executive branch creates a host of intractable interpretive difficulties.
2. Statutory Structure Precludes Interpreting “The Executive

Departments” in the FTCA To Mean “The Executive Branch”
When parties try to rewrite statutes, they often run into trouble. This case
proves the point. In arguing that Congress chose its words carelessly—and that “the
executive departments” is merely imprecise shorthand for “the executive branch”—
Appellants provoke a host of interpretive difficulties. See DOJ Br. 19-20; Trump Br.
23-28. The upshot is that the FTCA’s reference to “the executive departments”
23
cannot reasonably be read as encompassing the whole branch. See SPA20 (“[I]t is
apparent that this definition does not include the entire executive branch.”).
That is true for many reasons. For starters, Appellants utterly fail to grapple
with the authorities that we cite above—which we also cited in the district court—
to demonstrate a longstanding, limited usage of the term “executive departments.”
The closest Appellants come to a response is DOJ’s insistence that “the meaning of
‘department’ depends on context and can be broader than just the cabinet-level
agencies.” DOJ Br. 18. But there is a world of difference between the holding in
PCAOB, which nudged the door just enough to admit the SEC, and Appellants’
position here, which blows the door off its hinges. If anything, PCAOB’s narrow
holding—based on specific prior practice relating to appointments and accompanied
by warnings against broader applicability—cuts against DOJ’s suggestion that the
phrase “executive departments” impliedly captures the entire executive branch.
So does the presumption against superfluity. See United States v. Jicarilla
Apache Nation, 564 U.S. 162, 185 (2011). As originally enacted, the definition of
“federal agency” in the FTCA included “independent establishments.” See 60 Stat.
843. This would have been a waste of words if the FTCA’s reference to “the
executive departments” covered “the executive branch,” since “independent
establishments” were contemporaneously understood to be part of the executive
branch. See U.S. Government Manual 570 (1946). Similarly, Congress later
24
amended the FTCA to add “the military departments”—which, like “independent
establishments,” exist within the executive branch. See U.S. Const., art. II, § 2; 28
U.S.C. § 2671. Appellants’ position would thus render original statutory text and a
subsequent amendment pointless, offending both the anti-superfluity canon and the
related interpretive principle that “[w]hen Congress acts to amend a statute, [courts]
presume it intends its amendment to have real and substantial effect.” Stone v. I.N.S.,
514 U.S. 386, 397 (1995). These principles confirm that “the executive departments”
should be read more narrowly. 6
The same conclusion follows from still another interpretive canon, which
provides that when a statute uses two different terms (especially in the same statutory
provision), courts should interpret them to mean two different things. See Russello
v. United States, 464 U.S. 16, 23 (1983). Here, in a single provision, the FTCA refers
to “the executive departments” and the “the judicial and legislative branches.” 28
U.S.C. § 2671 (emphasis added). To be sure, DOJ observes that the reference to
“branches” was added later. See DOJ Br. 19-20. But so what? Congress was free at
that point to modify the statute to say “executive branch.” Instead, it left the phrase
“executive departments” even as it added a reference to the other “branches.” That
6
Trump’s citation to Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206
(1953), does not show otherwise. See Trump Br. 25. That case referred offhandedly
to Congress and the President as the “political departments” but said nothing about
“the executive departments.” Mezei, 345 U.S. at 210.
25
decision deserves respect, not a rewrite. See SPA20 & n.51 (“Congress knew how
to refer to an entire branch of government . . . .”); Mohamad v. Palestinian Auth.,
566 U.S. 449, 456 (2012) (courts “generally seek to respect Congress’ decision to
use different terms to describe different categories of people or things”). 7
For his part, Trump places principal reliance on 28 U.S.C. § 451. See Trump
Br. 24. As we’ve already explained, however, that gets things backwards: Section
451 creates a presumption favoring a narrow definition of “executive departments”
(namely, the definition set forth in 5 U.S.C. § 101). And for the reasons given above,
Appellants fail to overcome that presumption: there is no affirmative support in
relevant historical usage for reading “the executive departments” as though it said
“the executive branch,” and that reading makes nonsense of the statutory language.
7
Notably, even as it enacted the FTCA, Congress also amended the Civil Service
Retirement Act in a manner demonstrating attention to the distinction between “the
executive branch” and “the executive departments.” That Act had previously applied
to “all officers and employees in or under the executive, judicial, and legislative
branches of the United States Government . . . except elective officers and heads of
executive departments.” 5 U.S.C. § 693(a) (1940 ed. Supp. 1945). The 1946
amendment inserted “in the executive branch of the Government” after “elective
officers,” which had the effect of removing elected Members of Congress from the
exception and confining its coverage to the President and Vice President. 5 U.S.C. §
693(a) (1946) (Amendments). That amendment evinced a clear congressional
awareness of the longstanding distinction between “elective officers in the executive
branch” and “heads of executive departments.”
26
3. The President Is Not an Officer or Employee of “The Executive

Departments” as that Term Is Properly Interpreted
There is a reason why Appellants would prefer the FTCA to expressly cover
“the executive branch,” rather than covering only “the executive departments.” They
know that if this language is concerned exclusively with subsidiary components of
the executive branch, it cannot sensibly apply to the President.
Appellants do not contend otherwise. Nowhere in their briefs do they suggest
that the President is an officer or employee of (for instance) the Department of
Agriculture. Nor could they. The Constitution itself—as well as an unbroken chain
of judicial, legislative, and executive authorities—rejects that proposition. See
A335-37 (surveying sources confirming that the President is not himself an officer
or employee of any subsidiary component of the executive branch). Instead, the
President is understood to enjoy a general supervisory power—based in the Vesting,
Take Care, and Appointments Clauses of the Constitution—over all executive
departments, each of which has its own employees and is headed by its own distinct
principal officer subject to Senate confirmation and statutory limitations. See Seila
Law LLC v. C.F.P.B., 140 S. Ct. 2183, 2197-2205 (2020); Gillian Metzger, The
Constitutional Duty to Supervise, 124 Yale L.J. 1836 (2015).
27
Accordingly, it follows from text and history that the FTCA’s reference to
“the executive departments” cannot be read as covering the President, who is not an
officer or employee of any subsidiary component within the executive branch. 8
B. The District Court Correctly Held that the President Is Not

Covered by Any Other Language in the FTCA
Because the FTCA does not expressly apply to the President—and does not
reach him through its reference to “the executive departments”—Appellants are left
to contend that he is covered as an “employee of the federal government” in “a literal
sense.” DOJ Br. 13; see Trump Br. 16-19. To support this position, Appellants
emphasize the FTCA’s breadth, and its use of the words “any” and “include.” See
id. Although it is true that the FTCA sweeps broadly, Appellants push the text well
past its breaking point—in ways that offend basic rules of statutory interpretation
and settled separation-of-powers principles. As Judge Kaplan explained, “if
8
This conclusion applies with full force to the Executive Office of the President
(EOP). DOJ cites legislative and judicial usage and practice suggesting that EOP
may rank among the “executive departments” expressly covered by the FTCA. See
DOJ Br. 18-20; see also supra at 22-23 (explaining that the FTCA may extend
beyond the Cabinet to cover discrete freestanding components within the executive
branch). But as Judge Kaplan concluded—and DOJ does not actually contest or
dispute this conclusion on appeal—the President is not an officer or employee of
EOP. See SPA23-24 (“The head of the EOP, which is a network of agencies, is the
president’s chief of staff.”); see also A338-41 (describing the history of EOP and
explaining why constitutional, legislative, and executive branch authorities and
precedents confirm that the President is neither an officer nor an employee of EOP).
Therefore, even if EOP does count among the “executive departments,” that is no
basis for treating the President as covered by this language in the FTCA.
28
Congress had intended to include an individual as significant and obvious as the
president in this statute, it would have done so clearly.” SPA19 n.48. Because
Congress did not make that choice, the President is not subject to the FTCA.
1. Appellants’ Proposed “Literal” Test for Employment Under the

FTCA Cannot be Squared with the Statutory Language
In Appellants’ view, it is unnecessary to focus on the specific definition of
“employee of the government” provided in the FTCA. As they see it, because that
definition “includes” “officers or employees of any federal agency,” the FTCA
applies very broadly. So broadly, in fact, that it reaches anyone, anywhere who “is
employed by the government in a literal sense”—e.g., “renders services to the United
States in return for a salary and other compensation.” DOJ Br. 14.
This may have been a simpler definition, but it is not the one Congress wrote
into law. Adopting it, moreover, would render superfluous huge swaths of relevant
statutory language, not to mention numerous statutory amendments. Remember: the
FTCA as originally enacted featured the same uses of “any” and “includes” that
Appellants cite. If this language truly required a “literal” test for employment—and
rendered the enumerated definitional terms merely illustrative of that test—then the
statute is riddled with empty language. To start, the FTCA includes “officers” in the
definitional phrase “officers or employees of any federal agency.” 28 U.S.C. § 2671.
Congress presumably included “officers” to make clear that the FTCA covers those
who lead agencies, not only those who staff them. But every officer of a federal
29
agency is also an employee of the federal government in the literal sense proposed
by Appellants—and so there would have been no need for Congress to include the
word “officers” if Appellants’ interpretation were correct. See Corley v. United
States, 556 U.S. 303, 314-15 (2009) (applying anti-superfluity canon).
Yet that is just the tip of the iceberg. In 1946, the definition of “employee of
the government” did not include “members of the National Guard while engaged in
training or duty” or “any officer or employee of a Federal public defender
organization.” See 60 Stat. 843. Those terms were added in 1981 and 2000,
respectively. See Pub. L. No. 97-124, § 1, 95 Stat. 1666 (1981); Pub. L. No. 106-
518, § 401, 114 Stat. 2421 (2000). Nor did the original statutory definition of
“federal agency” include “the military departments” or “the judicial and legislative
branches,” which were added in 1966 and 1988, respectively. See Pub. L. No. 89-
506, § 8, 80 Stat. 306, 307 (1966); Pub. L. No. 100-694, § 3, 102 Stat. 4563, 4564
(1988). 9 If the FTCA as originally enacted—with its use of “any” and “includes”—
9
When Congress added “military departments,” an accompanying Senate Report
explained that the reason was “to include [the military departments] in the
definition.” S. Rep. No. 89-1327 (1966), 1966 WL 4317. In other words, the Senate
did not understand the FTCA at that point to capture everyone employed by the
federal government. It instead viewed the FTCA’s definitional terms as significant.
Similarly, when Congress added the judicial and legislative branches in 1988, the
House Committee Report opined that the FTCA previously “cover[ed] employees
of the Executive Branch only.” H.R. Rep. No. 100-700 at 5 (1988).
30
were all-encompassing from the outset, as Appellants insist, then none of these
amendments would have been necessary. Indeed, if Appellants’ interpretation were
correct, not a single amendment to the FTCA’s definitional provisions has had any
concrete effect on who is covered by the statute, contravening the principle that
statutory amendments are presumed to have “real and substantial effect.” Stone, 514
U.S. at 397.
It follows that Appellants are mistaken. Since the FTCA was enacted, courts
have not treated “employee of the government” as a catch-all term. They have
instead paid careful attention to the specific language in its statutory definition. That
is why Congress saw fit to add references to the National Guard, the Federal public
defender service, the military, and the judicial and legislative branches. To be sure,
Appellants insist that their catch-all view is longstanding. But DOJ itself argued on
several occasions before passage of the Westfall Act that the FTCA did not apply to
the legislative and judicial branches because they were not specifically listed in the
statute—and in several of those cases, courts agreed. 10 See Cromelin v. United
Thus, whereas DOJ suggests that Congress has always viewed the FTCA as
applying far beyond its language, see DOJ Br. 13-14 (citing legislative history),
Congress’s own actions—including its actions amending the FTCA’s definitional
provisions—show otherwise. See also Azar v. Allina Health Servs., 139 S. Ct. 1804,
1814 (2019) (“[L]egislative history is not the law.”).
10
In support of its view, DOJ cites a 1947 opinion from the Comptroller General
concluding that the Library of Congress is a federal agency covered by the FTCA.
31
States, 177 F.2d 275, 277 (5th Cir. 1949); Foster v. Bork, 425 F. Supp. 1318, 1319-
20 (D.D.C. 1977); see also McNamara v. United States, 199 F. Supp. 879, 880-81
(D.D.C. 1961) (DOJ argued that FTCA was limited; court disagreed). 11 As these
sources demonstrate, the decades since the FTCA’s passage gave rise to debate over
who was covered by its plain text—an issue that Congress addressed several times
by modifying definitional language that DOJ now treats as essentially meaningless.
The better approach is to take seriously the statutory language. A close look
at the definition of “federal agency” reveals two key points.
First, in defining “employee of the federal government” and “federal agency,”
the FTCA uses the word “includes” in a particularized manner. This is not a statute
that says “include” before providing a non-exhaustive, illustrative list of terms that
naturally fall within the more general phrases being defined. See Christopher v.
DOJ Br. 13. Respectfully, that opinion was no model of clarity. See Federal Tort
Claims Act—Applicability to Agencies in Other Than Executive Branch of
Government, 26 Comp. Gen. 891, 892 (1947). And in 1980, another Comptroller
General opinion reversed course, noting that “good arguments may be made” for the
position that Members of Congress are not covered by the FTCA. Matter of
Claiborne Pell, U.S. Senate, B-199413, 1980 WL 16158 (Aug. 11, 1980).
11
Trump suggests that the district court’s opinion in McNamara is entitled to special
consideration because the judge who decided it assisted with drafting the FTCA.
Trump Br. 24 & n.12. But other courts (and the House Report accompanying the
Westfall Act) disagreed with that interpretation of the FTCA, and it should go
without saying that a single staffer’s personal views of what Congress intended
cannot eclipse a statute’s plain text.
32
SmithKline Beecham Corp., 567 U.S. 142, 162 (2012). Instead, it uses “includes” to
specify that certain non-obvious entities fall within the general phrase. For example,
“employee of the government” is defined to “include[]” unpaid temporary
volunteers, see 28 U.S.C. § 2671, even though “employee” is generally understood
(and was understood in 1946) to mean someone who works for wages or a salary.
See Employee, Webster’s New International Dictionary 839 (2d ed. 1934).
“Employee of the government” is also defined to “include[]” federal defenders,
“except” when defenders “perform[] professional services in the course of providing
[legal] representation.” Once again, this is a decidedly non-obvious definition of the
general term—functioning more as a precise definition than a catch-all. The same
pattern repeats in the definition of “federal agency,” which is defined to “include[]”
the judicial and legislative branches, even though the Judiciary and Congress do not
fall within the common understanding of the term “agency.” E.g., Administrative
Procedure Act, Pub. L. No. 79-404, § 2(a), 60 Stat. 237, 237 (1946). In these
respects, the terms that Congress used in defining who is covered by the FTCA are
doing real, substantive work in specifying where the law applies.
This leads to the second key point: words are known by the company they
keep (noscitur a sociis). See S.D. Warren Co. v. Maine Bd. of Env’t Prot., 547 U.S.
370, 378 (2006). And the words in the FTCA keep a very specific sort of company:
they refer either to a branch of government (Congress and Judiciary) or to subsidiary
33
components of the remaining branch. DOJ says that “it would have been difficult to
draft more all-embracing definitions.” DOJ Br. 12. Not so. It would have been easy
for Congress to add “the President” (who is referenced in many other laws), or
“elective officers in the executive branch” (a phrase enacted into law in the Civil
Service Retirement Act of 1946), or “the executive branch” (which is what
Appellants would prefer it said). Instead, knowing full well how to specify a branch
of government, or even the elected officials of a branch, Congress has only ever
added specific subsidiary components of the executive branch to the definition of
“federal agency”: “executive departments,” “military departments,” “independent
establishments,” “members of the military or naval forces,” and “members of the
National Guard.” 28 U.S.C. § 2671. None of these terms applies to the President,
who alone composes a branch of government that Congress did not include within
the FTCA’s plain language. See Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034
(2020). 12
Because employees of subsidiary components of the executive branch are all
fundamentally differently situated than the President, it would defy logic to treat
§ 2671 as covertly sweeping in the President. Even if § 2671’s definition is merely
12
Appellants cite several cases treating the President as an “employee” under other
statutes. See DOJ Br. 13-15; Trump Br. 15-16, 19-20, 24-25. But courts “must
follow” the FTCA’s “explicit definition,” not definitions in other statutes. Stenberg,
530 U.S. at 942.
34
illustrative, the statute still does not encompass the President because the “types of
[employees] listed” are categorically different from—not illustrative of—that office.
See Samantar v. Yousuf, 560 U.S. 305, 317 (2010). As Judge Kaplan reasoned, “[t]he
plain meaning of this language is that members of Congress, federal judges, and the
staffs of both all were included in the term ‘federal agency.’ But the entire executive
branch is not. Only those parts of the executive branch that fall within the other terms
of the definition are included.” SPA20-21. 13
2. Separation-of-Powers Principles Confirm that the President Is

Not Subject to the FTCA’s Wavier of Sovereign Immunity
Judge Kaplan’s conclusion is further supported by the separation-of-powers
principle articulated in Franklin v. Massachusetts, 505 U.S. 788 (1992). There, the
Supreme Court held that the President is not an “agency” under the Administrative
Procedure Act (APA). See id. at 799. Noting that the APA does not expressly refer
to the President, it explained that “[o]ut of respect for the separation of powers and
13
DOJ resists this conclusion, invoking United States v. Smith, 499 U.S. 160, 173
(1991). See DOJ Br. 15. That reliance is misplaced. Smith held that the Westfall Act
applied to “employees who are covered under pre-Act immunity statutes and those
who are not.” 499 U.S. at 173. It explained that “[w]hen Congress wanted to limit
the scope of immunity available under the [Westfall Act], it did so expressly.” Id.
Citing this language out of context, DOJ contends that it requires an “express
exclusion” for the FTCA not to cover the President. DOJ Br. 15. That is a patent
misreading of the case: Smith required an express exclusion to show that somebody
who otherwise enjoyed FTCA immunity could still face liability based on a separate
federal statute, not to show that somebody fell within the FTCA’s coverage in the
first place. Here, the President does not satisfy that threshold requirement.
35
the unique constitutional position of the President . . . [w]e would require an express
statement by Congress before assuming it intended the President’s performance of
his statutory duties to be reviewed by abuse of discretion.” Id. at 800-01.
That principle clearly applies here. The FTCA expressly waives the sovereign
immunity of the United States as to certain conduct by federal employees within the
scope of their employment. In so doing, it authorizes federal courts to review the
conduct of federal employees in circumstances where such review might otherwise
be prohibited by sovereign immunity. It follows that if Appellants are correct and
the President is indeed subject to the FTCA, then Congress subjected the President’s
conduct to judicial review when it enacted the FTCA in 1946. As Judge Kaplan
recognized, Appellants thus ask “this Court to do precisely what Franklin forbids:
to take a statute that, at best from the government’s standpoint, is silent on the
question of whether it applies to the president—and in fact strongly appears to
exclude him—and hold that Congress intended to authorize lawsuits by private
plaintiffs requiring federal courts to review his official acts.” SPA30.
Because they cannot satisfy Franklin’s clear-statement rule, Appellants argue
that Franklin is inapposite. This argument rests on a carefully constructed syllogism:
Franklin applies only to abuse-of-discretion review; there cannot be abuse-of-
discretion review of presidential conduct under the FTCA due to the discretionary
function exemption; therefore, Franklin cannot apply here. DOJ Br. 27-28.
36
But (as DOJ should well know) that argument falls apart at the very first step.
Franklin’s clear-statement rule is not limited solely to contexts involving abuse-of-
discretion review. Rather, the separation-of-powers concerns Franklin articulated
were framed much more broadly. Thus, in holding that the President’s actions are
not reviewable under the APA, Franklin cited Armstrong v. Bush, 924 F.2d 282
(D.C. Cir. 1991)—specifically, the page where Judge Wald emphasized that
“legislation regulating presidential action, no less than legislation altering the
federal-state balance, raises ‘serious’ practical, political, and constitutional questions
that warrant careful congressional and presidential consideration.” Id. at 289.
In fact, less than two years ago, DOJ rejected the very proposition that it
advances here: it argued that neither Franklin nor Armstrong “depended on . . . a
distinction” between “abuse-of-discretion review” and the constitutional claims
asserted by the plaintiffs in that case. See Reply Br. 16, Blumenthal v. Trump, No.
19-5237, 2019 WL 5727504 (D.C. Cir. Nov. 5, 2019). And that was no aberration—
time and again, across administrations, DOJ has concluded that Franklin imposed a
clear-statement requirement far beyond the limited context of abuse-of-discretion
review. See, e.g., Application of 28 US.C. § 458 to Presidential Appointments of
Federal Judges, 19 Op. O.L.C. 350, 352, 1995 WL 1767997 (1995) (citing Franklin
for the “well-settled principle that statutes that do not expressly apply to the
President must be construed as not applying to the President if such application
37
would involve a possible conflict with the President’s constitutional
prerogatives”). 14
DOJ’s sudden, convenient about-face on Franklin cannot be credited. As
Judge Kaplan concluded, the separation-of-powers concerns articulated in Franklin
apply in determining whether Congress waived sovereign immunity—and thereby
authorized judicial review—in lawsuits challenging the President’s conduct. Here,
given the stark absence of any clear statement subjecting the President’s conduct to
judicial review under the FTCA, the Court should hold that it does not cover him.
Indeed, the separation-of-powers concerns identified in Franklin apply to this
context with added force. Under the FTCA, courts must determine whether an
14
See, e.g., Pet. Reply Br. 22, In re Donald J. Trump, No. 20-331, 2020 WL 7681471
(U.S. Sept. 2020) (citing Franklin to argue that “‘an express statement by Congress’”
is necessary “before a generally available cause of action . . . may be applied to the
President”); Br. for the United States as Amicus Curiae at 15, 22, Trump v. Mazars
USA, LLP, No. 19-715, 2020 WL 563912 (U.S. Feb. 3, 2020) (describing Franklin
as “requiring an ‘express statement’ ‘before assuming Congress intended’ to regulate
the President”); Br. for the Appellants at 25, Mironescu v. Costner, 2006 WL
1558336 (4th Cir. 2006) (arguing that a statute does not supersede a “historically-
recognized power[]” of the executive branch on issue of extradition because
Franklin and Armstrong would require a clear statement); Br. for Appellant United
States at 16-17, Wilkinson v. Legal Servs. Corp., 1995 WL 17204605 (D.C. Cir.
1995) (arguing that a statute did not abrogate the President’s Recess Appointments
Clause powers because Franklin and Armstrong’s “clear statement requirement
should be particularly applicable”); Gov’t Defs.’ Notice of Mot. and Mot. to Dismiss
and for Summ. J. at 29, Jewel v. Nat’l Sec. Agency, 2012 WL 6218080 (N.D. Cal.
2012) (citing Franklin to argue that “displacement of the state secrets privilege
cannot be found unless Congress made clear its intent to do so”).
38
employee of the government has acted within the scope of his or her employment.
By its very nature, this inquiry directs judicial attention to conduct that may arise at
the outer limits of a federal employee’s official duties. Appellants’ position thus
suggests that Congress waived sovereign immunity and subjected to judicial review
actions of the President at the boundary of his personal and official capacities. In
light of the undoubted sensitivities that may surround such judicial review, the Court
should insist that Congress speak clearly before authorizing it in a federal statute.
See Mazars, 140 S. Ct. at 2033.
Against all this, DOJ offers little more than a policy argument: “[t]he
possibility of substitution” under the Westfall Act “is valuable independent of the
immunity [the Act] provides.” DOJ Br. 26 (internal quotation marks omitted). But
this argument is doubly flawed. First, the President already enjoys absolute
immunity from suit for damages in cases concerning his official conduct—and in
such litigation, even absent formal substitution mechanisms, DOJ nearly always
represents the President and litigates in his stead. See Harlow v. Fitzgerald, 457 U.S.
800, 807 (1982); see also 28 U.S.C. § 517; 28 C.F.R. § 50.15. Second, DOJ’s policy
argument is anachronistic as a basis for interpreting the FTCA: the substitution
procedures that DOJ invokes were not enacted until 1988 (in the Westfall Act), and
do not afford a ground on which to infer that a law enacted in 1946 applies sub
silentio to the President.
39
Accordingly, ordinary tools of statutory interpretation and settled separation-
of-powers principles confirm that the FTCA—which makes no mention of the
President—does not apply here. The decision below should be affirmed on that basis.
II. TRUMP WAS NOT ACTING WITHIN THE SCOPE OF HIS

EMPLOYMENT WHEN HE WILLFULLY DEFAMED CARROLL
FOR REVEALING THAT HE HAD SEXUALLY ASSAULTED HER
In the alternative—and independently—the Court should affirm the decision
below on the ground that Trump was acting outside the scope of his employment as
President of the United States when he repeatedly and willfully defamed Carroll. We
first explain why New York (not D.C.) law governs that inquiry. We then describe
and apply the controlling principles of respondeat superior jurisprudence. Finally,
we demonstrate that Appellants’ arguments rest on clear legal and factual error.
A. New York Law Governs the Scope of Employment Inquiry
In the district court, the parties disagreed over whether New York or D.C. law
governs the scope-of-employment inquiry. Acknowledging that disagreement, Judge
Kaplan concluded that there was no true conflict, since President Trump acted
outside the scope of his employment under either New York or D.C. law. See
SPA40-41, 60. On appeal, Appellants maintain that D.C. law applies. See DOJ Br.
29; Trump Br. 32 n.15. Although the outcome is indeed the same either way, the
Court should apply New York’s well-developed body of respondeat superior law.
40
The starting point for this analysis is Richards v. United States, 369 U.S. 1
(1962), which held that courts must apply “the whole law (including choice-of-law
rules)” “of the State where the act or omission occurred.” Id. at 3, 11; see also Devlin
v. United States, 352 F.3d 525, 532 (2d Cir. 2003). In this case, the relevant acts
occurred in D.C. The Court therefore applies D.C. choice-of-law rules, which direct
attention to four considerations: “the place where the injury occurred”; “the place
where the conduct causing the injury occurred”; “the domicile, residence,
nationality, place of incorporation and place of business of the parties”; and “the
place where the relationship is centered.” Pietrangelo v. Wilmer Cutler Pickering
Hale & Dorr, LLP, 68 A.3d 697, 714 (D.C. 2013).
Here, the first, third, and fourth factors strongly favor New York: Carroll was
injured in New York; both she and Trump were domiciled in New York when Trump
committed his torts;15 and their relationship was centered in New York. The second
factor does not strongly favor either jurisdiction: although Trump was physically in
D.C. when he made his defamatory statements, they were instantly broadcast
nationally. Therefore, New York has the “most significant relationship to the
dispute.” Id.; see Weyrich v. New Republic Inc., 235 F.3d 617, 626 (D.C. Cir. 2001)
15
As noted above, Trump initially disputed his New York domicile, but lost a motion
to dismiss on that basis, see A149, and later withdrew his affirmative defense of lack
of personal jurisdiction, see A267-84.
41
(in defamation cases, “[t]he weight of authority considers that the law to be applied
. . . is [that of] the place where the plaintiff suffered injury by reason of his loss of
reputation”); Foretich v. CBS, Inc., 619 A.2d 48, 54 n.9 (D.C. 1993) (same).
Strangely, Appellants do not mention D.C.’s four-factor test, much less argue
that it favors applying D.C. respondeat superior law. Instead, they urge the
application of D.C. law simply because “the employment relationship between the
President and the United States is centered in D.C.” DOJ Br. 30; see Trump Br. 32
n.15. For this proposition, Appellants cite Jacobs v. Vrobel, 724 F.3d 217, 221 (D.C.
Cir. 2013), which in turn cites Majano v. United States, 469 F.3d 138, 141 (D.C. Cir.
2006), which in turn cites Kimbro v. Velten, 30 F.3d 1501, 1506 (D.C. Cir. 1994),
which in turn cites . . . nothing. In fact, Kimbro says nothing about choice of law and
has no reasoning on the subject, let alone a discussion of Richards or D.C. choice-
of-law principles. It appears that all three cases simply state the rule without any
cited basis in D.C. doctrine; this may reflect the fact that none of these cases involved
an actual choice-of-law dispute, since all three cases addressed torts committed in
D.C. by a D.C.-based federal employee, resulting in harm to another D.C.-based
employee. Whatever the explanation, Jacobs cannot support applying D.C. law here.
As a fallback, DOJ suggests that even if New York’s “substantive tort law
applies,” the Court should undertake a “separate” analysis regarding “which
jurisdiction’s scope-of-employment law should be controlling.” DOJ Br. 29-30. In
42
particular, DOJ takes the position that D.C. choice-of-law principles point to “the
law of the jurisdiction where the employment relationship was centered, not the site
of the alleged tort” as governing the respondeat superior question. DOJ Br. 30. In
support of that proposition, they cite Bailey v. J & B Trucking Services, Inc., 590 F.
Supp. 2d 4 (D.D.C. 2008). But Bailey is an outlier. It arose from an idiosyncratic
circumstance in which Maryland law “effectively disclaimed” any interest in the
application of its substantive negligence law, leading to a split in jurisdictional
interests that does not exist here. Id. at 10. For that reason, and those given above,
the Court should apply New York law to the issues at hand—an outcome consistent
with authorities that have similarly applied other states’ respondeat superior law in
cases involving defamation committed by D.C.-based federal officials. E.g., Does 1-
10 v. Haaland, 973, F.3d 591, 599 (6th Cir. 2020) (applying Kentucky law);
Williams v. United States, 71 F.3d 502, 506 (5th Cir. 1995) (applying Texas law).
B. An Employee Acts Outside the Scope of Their Employment When

They Act for Personal Reasons to Obtain a Personal Benefit
Under the doctrine of respondeat superior—as articulated in both New York
and D.C. (we will address both bodies of law)—an employer may be held liable for
the acts of an employee “only if those acts were committed in furtherance of the
employer’s business and within the scope of employment.” Rivera v. State, 34
N.Y.3d 383, 389-90 (2019); accord Blair v. District of Columbia,190 A.3d 212, 225
43
(D.C. 2018). Disputes over whether an employee acted within the scope of his
employment are generally questions of fact reserved for juries. See SPA41-42.
It is black letter law that an employee acts outside the scope of employment if
their conduct is “too little actuated by a purpose to serve the master.” Restatement
(Second) of Agency § 228 (1958); see also Swarna v. Al-Awadi, 622 F.3d 123, 144-
45 (2d Cir. 2010); District of Columbia v. Bamidele, 103 A.3d 516, 525 (D.C. 2014);
N.X. v. Cabrini Med. Ctr., 97 N.Y.2d 247, 251 (2002); Demas v. Levitsky, 291
A.D.2d 653, 661 (3d Dep’t 2002); Heindel v. Bowery Sav. Bank, 138 A.D.2d 787,
788 (3d Dep’t 1988). “Under such circumstances, the conduct—although occurring
during the course of his employment—is outside the scope of [his] employment.”
Ierardi v. Sisco, 119 F.3d 183, 188 (2d Cir. 1997). Significantly, that rule controls
even if “an activity which benefits an employee personally could also have a possible
benefit to the employer.” Overton v. Ebert, 180 A.D.2d 955, 957 (3d Dep’t 1992).
Unsurprisingly, many applications of the “personal motives” doctrine have
occurred in cases involving sexual assault, sexual harassment, or defamation claims
relating to sexual misconduct. See Ross v. Mitsui Fudosan, Inc., 2 F. Supp. 2d 522,
531 (S.D.N.Y. 1998) (“New York courts consistently have held that sexual
misconduct and related tortious behavior arise from personal motives and do not
further an employer’s business, even when committed within the employment
context.” (emphasis added)); see also, e.g., Ierardi, 119 F.3d at 188-89 (sexual
44
harassment); N.X., 97 N.Y.2d at 251 (sexual assault). In Rausman v. Baugh, for
example, the Second Department ordered dismissal of a claim alleging that a hospital
employee had acted “within the scope of her employment” in making an allegedly
defamatory accusation of sexual harassment against another employee. 248 A.D.2d
8, 9-10, 12-13 (2d Dep’t 1998) (finding she acted “solely for personal motives”).
In a similar vein, courts have identified personal motives where the allegations
or evidence established that an employee was driven by personal animus or a desire
for revenge. See, e.g., Pohlman v. Village of Freeport, No. 19 Civ. 5277, 2020 WL
5878257, at *6 (E.D.N.Y. Sept. 30, 2020); George v. N.Y.C. Transit Auth., No. 04
Civ. 3263, 2008 WL 4274362, at *3 (E.D.N.Y. Sept. 17, 2008); see also Bergeron
v. Henderson, 47 F. Supp. 2d 61, 79 (D. Me. 1999) (Maine law); Inman v.
Dominguez, 371 S.W.3d 921, 926 (Mo. Ct. App. 2012) (Missouri law).
Across a wide range of settings and alleged intentional torts, courts have long
recognized that “[t]he outrageous quality of an employee’s act may well be
persuasive in considering whether his motivation was purely personal.” Penn Cent.
Transp. Co. v. Reddick, 398 A.2d 27, 31 (D.C. 1979) (cleaned up). In other words—
to borrow from the Restatement (Second) of Agency—“the fact that the servant acts
in an outrageous manner or inflicts a punishment out of all proportion to the
necessities of his master’s business is evidence indicating that the servant has
departed from the scope of employment in performing the act.” § 245 cmt. f.
45
That rule applies with particular force in suits involving “an intentional tort,”
which “by its nature is willful and thus more readily suggests personal motivation.”
Jordan v. Medley, 711 F.2d 211, 215 (D.C. Cir. 1983) (Scalia, J.); see also Majano,
469 F.3d at 142 (“The nature of the attack also informs the intent analysis.”);
Bamidele, 103 A.3d at 525-26. Of course, defamation is an intentional tort: in cases
involving a public figure, the plaintiff must allege that the defamatory statements
were published with “actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254,
280 (1964); see also Armstrong v. Thompson, 759 F. Supp. 2d 89, 95 (D.D.C. 2011)
(concluding in an FTCA case that a federal employee acted for personal motives,
and thus outside the scope of her employment, in making defamatory statements).
Many of these principles came into play in Perks v. Town of Huntington, 251
F. Supp. 2d 1143 (E.D.N.Y. 2003), which offers a helpful illustration. There,
William Perks (Huntington’s Harbor Master) alleged that Councilwoman Susan
Scarpati-Reilly “maneuvered herself into a position as one of his supervisors,
whereupon she initiated a sexual relationship with him and—once he terminated the
relationship—sexually harassed, defamed, and conspired against him.” Id. at 1148.
Among other causes of action, Perks alleged two defamation claims against Scarpati-
Reilly. See id. at 1164-71. On both of these claims, Perks also sought recovery from
Huntington on a respondeat superior theory—and on both claims, Judge Young
46
(sitting by designation) granted summary judgment for Huntington, finding that
Scarpati-Reilly had acted on the basis of her own personal motives. See id.
The Perks Court’s reasoning as to the first defamation claim is instructive.
That claim arose from a false police report that Scarpati-Reilly filed against Perks
shortly after he terminated their sexual relationship. In holding that Scarpati-Reilly
acted outside her employment in filing the report—and that she had instead acted
with “personal motives”—Judge Young relied on four considerations: (1) her
official duties did not require her to file police reports against Town employees; (2)
her official position conferred no special authority to file such reports; (3)
Huntington had not instructed her to engage in such behavior; and (4) her filing of
the report did not “yield any benefit for Huntington or further its interests.” Id. at
1167. In response, Scarpati-Reilly objected that she was “always [a]
Councilwoman”—an “elected official twenty-four hours a day”—and “[e]verything
that I do I’m acting as Councilwoman for the Town of Huntington.” Id. Judge
Young, however, rejected her position, concluding that her defamatory statement did
not fall within her employment because it resulted from personal motives. Id.
As Perks demonstrates—and as many other precedents confirm—when an
employee acts for personal reasons, their conduct falls outside the scope of their
employment. That rule applies in the defamation context. E.g., Armstrong, 759 F.
Supp. 2d at 95; Rausman, 248 A.D.2d at 9-10, 12-13; Demas, 291 A.D.2d at 661. It
47
applies to public officials. See Perks, 251 F. Supp. 2d at 1167. It applies even if an
employee can identify some incidental benefit to the employer. See Overton, 180
A.D.2d at 957. It applies most forcefully when an employee commits an intentional
tort, Jordan, 711 F.2d at 215, engages in conduct out of proportion to the needs of
their position, Penn Cent., 398 A.2d at 31, or acts based on motives relating to their
own sexual misconduct, see, e.g., Perks, 251 F. Supp. 2d. at 1164-71; Ross, 2 F.
Supp. 2d at 531; Rausman, 248 A.D.2d at 9-10, 12-13. And as Judge Kaplan found,
it most certainly applies to Trump’s conduct here, which had nothing to do with the
Presidency and amounted to a deliberate, degrading, and intensely personal attack
launched as retaliation for revealing a sexual assault that occurred decades ago.
C. Trump Acted Outside the Scope of His Employment as President

in Repeatedly Defaming and Insulting Carroll
1. Presidents May Unquestionably Engage in Personal Conduct

Causing Private Wrongs
The Constitution provides that “[t]he executive Power shall be vested in a
President of the United States of America.” U.S. Const., art. II, § 1. “This grant of
authority establishes the President as the chief constitutional officer of the Executive
Branch, entrusted with supervisory and policy responsibilities of utmost discretion
and sensitivity.” Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982). In our legal tradition,
and by virtue of being held “accountable to the people through regular elections,”
Seila Law, 140 S. Ct. at 2203, the President “possesses an extraordinary power to
48
speak to his fellow citizens and on their behalf.” Trump v. Hawaii, 138 S. Ct. 2392,
2417-18 (2018). The President thus enjoys a “unique status.” Nixon, 457 U.S. at 750.
He must be available to lead the Nation. In a sense, he “never adjourns.” Clinton v.
Jones, 520 U.S. 681, 713 (1997) (Breyer, J., concurring in the judgment).
But the President “is a person as well as an institution.” Laurence H. Tribe,
American Constitutional Law 631 (3d ed. 2000). It is a fundamental precept of our
constitutional order—recognized by the Framers—that while in office, “far from
being above the laws, he is amenable to them in his private character as a citizen.” 2
J. Elliot, Debates on the Federal Constitution 480 (2d ed. 1863) (James Wilson). And
as Chief Justice Marshall anticipated, the demands of a President’s “duties as chief
magistrate” are not so “unremitting” as to consume “his whole time.” United States
v. Burr, 25 F. Cas. 30, 34 (Va. Cir. Ct. 1807). The Supreme Court has thus
recognized that the President may engage in private acts beyond the “‘outer
perimeter’ of his official responsibility,” Nixon, 457 U.S. at 756; that he remains
“subject to the laws for his purely private acts,” Clinton, 520 U.S. at 696; and that
he can be investigated for private criminal misdeeds, see Trump v. Vance, 140 S. Ct.
2412, 2426-27 (2020). These cases confirm that all Presidents retain a personal
capacity, and the ability to commit private wrongs, during their public service.
This principle is only further supported by Trump’s conduct during his tenure
in government. More than any other recent president, he repeatedly insisted that
49
aspects of his conduct in office were entirely private and personal—at least when
doing so afforded him the prospect of private financial gain or the power to censor
critics. See Pet. for Writ of Cert. at 15, Trump v. Knight First Amendment Institute,
No. 20-197 (U.S. Aug. 20, 2020) (“[B]locking third-party accounts from interacting
with the @realDonaldTrump account is a purely personal action.”); Mot. to Dismiss
at 31, District of Columbia v. Trump, No. 17 Civ. 1596, 2017 WL 7587415 (Sept.
29, 2017) (arguing that Trump remained free to profit from private commercial
transactions with foreign powers while in office, so long as he did not receive
“compensation for services rendered . . . in an official capacity or in an employment
(or equivalent) relationship with a foreign government”). These filings confirm that
Trump did not view his every word and deed as presidential, or as undertaken with
official purposes in mind, even when those actions might incidentally have
implications relating to his job. By his own admission, Trump sometimes perceived
himself as acting in a purely personal capacity—and as pursuing his own private
interests—while in office. And as Judge Kaplan found, that is exactly what happened
when Trump undertook to destroy Carroll’s livelihood and reputation in response to
allegations about a crime Trump committed decades before he assumed office.
2. Trump Acted for Personal Reasons in Defaming Carroll
In 2019, Carroll revealed to the public that Trump had sexually assaulted her
in New York City over twenty years earlier. Like other presidents who have been
50
accused of misconduct, Trump denied it. But he went much further than simply
denying her statement and calling for an investigation. He decided to viciously and
quite personally attack Carroll. He mocked her appearance, implying he would not
have raped her because “she’s not my type.” A42 ¶¶ 97-98. He also claimed
(implausibly) he had never met her and that he had no idea who she was. See A38
¶ 82; A40 ¶ 91. Even as he denied any knowledge of Carroll, he lied about her in
ways plainly calculated to punish and retaliate against her for daring to speak the
truth. He charged that she had made the whole thing up for financial gain, to increase
book sales, and to advance a nefarious political plot. See A26 ¶ 11. He also strongly
implied that she had falsely accused other men of rape—a vicious, horrible, and
extremely personal attack against a woman he claimed to know nothing about. See
id. Trump’s statements had a devastating effect on Carroll’s livelihood.
DOJ and Trump’s lawyers appear embarrassed by the statements they have
been tasked with defending. Rightly so. It seems they could not bring themselves to
include a single quote from his actual remarks in their argument that he acted within
the scope of his employment. They fail even to describe each of his statements and
to explain how those lies about Carroll reflected public service, not personal spite.
Yet that is their burden to carry as to each defamatory statement. The question
here is whether, each time he attacked Carroll, Trump acted in furtherance of his
duties as President, or instead in furtherance of personal motives. In answering that
51
question, moreover, the Court does not bend any inferences in Trump’s favor. It
must view “the tortious conduct in the light most favorable to the plaintiff” based
upon the record before it. Davila v. Lang, 343 F. Supp. 3d 254, 270-71 (S.D.N.Y.
2018); see also Bello v. United States, 93 F. App’x 288, 289-90 (2d Cir. 2004).
Here, the record before the Court consists centrally of the Complaint, which
sets forth detailed allegations as to Trump’s motives for making the defamatory
statements. See A44-48 ¶¶ 106-28. Although those allegations must be accepted as
true, Appellants hardly address them. To summarize: Trump knew who Carroll was
when he raped her, A44-45 ¶¶ 106-12; he knew in June 2019 that he had assaulted
her and that his denials were false, A45 ¶¶ 113-15; he deliberately lied, and spoke
with no concern for the truth, in accusing Carroll of fabricating the accusation in
exchange for payment, or as part of a political conspiracy or a plot to increase book
sales, A45-46 ¶¶ 116-18; he deliberately lied, or spoke with no concern for the truth,
in implying that Carroll had falsely accused other men of sexual assault, A46 ¶¶ 118-
19; and he engaged in these personal attacks because they were his modus
operandi—before and during his time in office—for responding to reports that he
had sexually assaulted women, A46-48 ¶¶ 122-27. Simply put, Trump “knew he was
lying when he said that Carroll had fabricated her rape accusation for a hodgepodge
of unsavory reasons that he himself had invented out of whole cloth.” A48 ¶ 128.
Further, Trump did not lie to advance any interest of the United States; in fact, he
52
did not consider such interests at all. He lied to protect himself from the truth about
his pre-office criminal misconduct and, after he knowingly lied about the sexual
assault itself, “he surrounded that central lie with a swarm of related lies in an effort
to explain why [Carroll] would invent an accusation of rape.” A46 ¶ 13.
Applying the law of respondeat superior (whether from New York or D.C.),
these particularized allegations—which must be read in Carroll’s favor, and which
neither DOJ nor Trump made any effort to refute below—support only a single
conclusion: “President Trump was not acting in furtherance of any duties owed to
any arguable employer when he made the comments at issue.” SPA60.
That conclusion is bolstered by four additional considerations. First, the
nature, tone, and content of Trump’s statements confirm that he defamed Carroll
“pursuant to [his] own personal motives.” Perks, 251 F. Supp. 2d at 1171. Trump
did not simply deny Carroll’s accusation, call for an investigation, and make some
broader point about politics or public discourse. Instead, with full awareness of his
lies and indifference to truth, Trump used the loudest megaphone on the planet to
launch a personal attack on Carroll. He implied she was too ugly for him to sexually
assault; he charged that she had falsely accused other men of rape; and he concocted
a malicious narrative under which Carroll lied to make money or increase book sales
or advance some vague political conspiracy. A26 ¶ 11. If this is not evidence of
personal ill will and spite, it is hard to imagine what would be. Trump sought to
53
destroy Carroll after she revealed that he had assaulted her. There is no basis here
for concluding that Trump had any presidential obligation to make these statements,
or that Trump did so to advance any public or national purpose.
Instead, the natural conclusion is that Trump acted “in an outrageous manner”
and “inflict[ed] a punishment out of all proportion to the necessities of his master’s
business”—thus confirming that he “departed from the scope of employment in
performing the act.” Restatement (Second) of Agency § 245 cmt. f. Where (as here),
an employee “did not handle the situation in a manner expected” of his office and
instead behaved like “an individual bent on personal vengeance for a perceived
personal affront,” courts have not hesitated to conclude that he acted for personal
reasons outside the scope of his employment. District of Columbia v. Coron, 515
A.2d 435, 438 (D.C. 1986); see also Armstrong, 759 F. Supp. 2d at 95 (finding under
D.C. law that the tone and content of alleged defamatory letters had “an air of
contempt and deprecation” evincing “personal motives”); Penn Cent., 398 A.2d at
32 (“The violent and unprovoked nature of [the employee’s] attack indeed suggests
a personal as distinguished from business-related motive.”).
To be clear, the point is not simply that Trump departed from how prior
presidents generally conducted themselves when accused of wrongdoing. It is that
his behavior toward Carroll—which far exceeded any public purpose and seemed
54
calculated to punish and retaliate against her for revealing his earlier private sexual
misconduct— evinced every recognized hallmark of a personally motivated attack.
Second, and relatedly, Trump’s defamatory statements were intentional torts.
Appellants gloss over the point, but it bears emphasis: as alleged in the Complaint,
Trump made each of these statements with actual malice—both literally and in the
technical sense. See Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657,
666 (1989). That willful state of mind powerfully supports finding that he acted for
personal reasons, rather than in furtherance of his job duties. As the D.C. Circuit has
recognized, “it would be unusual to find, as a matter of law, that an employee was
acting within the scope of her employment [under D.C. law] when she committed
an intentional tort,” which “by its nature is willful and thus more readily suggests
personal motivation.” Majano, 469 F.3d at 141 (citation omitted). Indeed, it would
send a deeply troubling message for the Court to conclude that Trump’s defamation
spree against Carroll was simply him doing his job. No court has held that the
President enjoys comprehensive immunity for willfully slandering a private citizen
as retribution for revealing private misconduct he committed before taking office.
Third, the subject matter of Trump’s statements further demonstrates personal
motivations. As Judge Kaplan observed, Trump’s “comments concerned an alleged
sexual assault that took place decades before he took office, and the allegations have
no relationship to the official business of the United States.” SPA60-61; see also
55
Perks, 251 F. Supp. 2d at 1171 (considering subject matter of statements in assessing
motives); Boykin v. District of Columbia, 484 A.2d 560, 563 (D.C. 1984)
(recognizing that prior dealings between the parties “would indicate that the tort was
personal”). These are precisely the sorts of defamatory statements relating to sexual
misconduct that courts have treated as beyond the scope of employment. See Ross, 2
F. Supp. 2d at 531 (intentional torts involving “sexual misconduct and related
tortious behavior” are generally understood to result from personal motives).
Clinton v. Jones is instructive. There, as here, “a plaintiff [Paula Jones] sued
the sitting president for defamation after she accused him of engaging in sexual
misconduct before he took office.” SPA55. But unlike Carroll—who alleges that
Trump himself defamed her through personal attacks extending far beyond a mere
denial—Jones alleged only that “various persons authorized to speak for the
President publicly branded her a liar by denying that the incident had occurred.”
Clinton, 520 U.S. at 685; see also Jones v. Clinton, 72 F.3d 1354, 1359 n.7 (8th Cir.
1996) (noting that Jones had focused on actions “by Mr. Clinton’s presidential press
secretary”). In these respects, the Clinton case involved far more government action
(a coordinated press strategy among White House staff), but significantly fewer
indicia of personal animus than Trump’s attacks on Carroll (the statements at issue
were mainly just denials). Presented with these facts, the Supreme Court cautiously
56
assessed that the defamation claims “arguably may involve conduct within the outer
perimeter of the President’s official responsibilities.” Clinton, 520 U.S. at 686.
If the claims in Clinton fell “somewhere between being outside the scope of
his duties and ‘arguably . . . within their outer perimeter,’” SPA56, it follows that
the claims here are certainly beyond the “outer perimeter” of presidential duty. Not
only are Trump’s statements far more outrageous and personally targeted than
Clinton’s denials of the Jones allegations, but they were uttered (or dictated) by
Trump himself as attacks on Carroll following her revelation of his earlier sexual
misconduct. In these circumstances, as Judge Kaplan reasoned, “it is difficult to see
how conduct that at most is in the ‘outer perimeter’ of the president’s job duties
could be actuated in any meaningful degree to serve his master, whomever that may
be.” Id.
Fourth, and finally, the personal nature of Trump’s conduct is illuminated by
its consistency with the personal attacks he has launched for decades against other
women who accused him of sexual misconduct. See A46-47 ¶¶ 122-27. Simply put,
Trump’s attacks on Carroll did not reflect anything unique to his high office, nor did
they arise from any distinctively presidential consideration. Rather, they followed
directly from a modus operandi stretching back decades into his life as a private
citizen. This consistency supports the conclusion that Trump’s efforts to destroy and
discredit Carroll were simply how he responds to any woman who accuses him of
57
sexual misconduct; they had nothing to do with his duties as President. He wanted
to punish Carroll for speaking up, so that is exactly what he did.
Indeed, this conduct was far more obviously based on personal motives—and
unrelated to his job as President—than actions he has elsewhere described as private.
See supra at 49-50. Trump viewed profitable commercial dealings with hostile
foreign powers (through a business he owned while in office) as personal, not
presidential. He insisted that blocking people from a social media platform on which
he fired Cabinet secretaries and announced significant public policy was personal,
not presidential. Only in a world gone mad could it be presidential, not personal, for
Trump to punitively slander a woman for revealing a decades-old sexual assault.
D. Appellants’ Arguments Rest on Legal and Factual Error
In Appellants’ view, the facts of this case are almost entirely irrelevant. They
would have the Court issue a sweeping declaration that “an office holder responsible
to the electorate is acting within the scope of his office when he responds to
accusations and attendant media inquiries that call into question his fitness to hold
the public trust.” DOJ Br. 31; see also Trump Br. 33 (seeking rule that “speaking to
the press” is always within employment). Of course, virtually any criticism of an
elected official, even if unrelated to their conduct in government, could be described
as calling into question their “fitness to hold the public trust.” So Appellants’
proposed test would automatically find any elected federal official to be within the
58
scope of their employment anytime they respond to anyone (including any private
citizen) who criticizes them in any way, including for conduct that occurred decades
before they took office. Under Appellants’ preferred standard, there is no room to
consider the possibility of personal motives—regardless of how private the subject
matter may be, how unrelenting and outrageous the response is, or how disconnected
it may be from any government business. Moreover, nothing about Appellants’ logic
explains why this rule should be limited to elected officials: their contentions would
map easily onto senior officials in the political branches. At bottom, Appellants ask
this Court to announce a doctrine of categorical immunity for government officials,
affording them carte blanche to use the public platform inherent in their office to
attack anyone who criticizes them for anything they have ever done.
Appellants’ extreme position is not the law. It rests on premises foreclosed by
precedent and inconsistent with our legal traditions. Although Appellants have
gerrymandered a theory designed to avoid any engagement with the facts of this
case, or the reality of Trump’s conduct as alleged in the Complaint, that theory must
be rejected—and the Court should therefore affirm the decision below.
The first flaw in Appellants’ position is that it effectively collapses the settled,
multi-factor standard for respondeat superior analysis into a single factor. As they
see it—and especially as DOJ frames the analysis, see DOJ Br. 31-35—the only
relevant question is whether a federal official is speaking to the press or responding
59
to critics. If so, they insist, the analysis is complete and the official was acting within
the scope of their employment, since speaking to the press and responding to critics
are the types of things that federal officials typically do as part of their jobs. But in
both New York and D.C., whether an employee is doing the kind of work he is
employed to perform is just one factor among several others that must be satisfied
in a scope-of-employment analysis. See Majano, 469 F.3d at 141 (describing D.C.
respondeat superior standard); Rivera, 34 N.Y.3d at 389-90 (describing New York
respondeat superior standard). To the extent Appellants seek to write off the
remaining elements of respondeat superior doctrine, their position rests on legal
error and cannot be sustained on that basis. See, e.g., DOJ Br. 34 (suggesting without
explanation or citation that the private purpose element may not apply to this case,
even though it is settled law in both New York and D.C.).
Indeed, the entire premise of the multi-factor respondeat superior standard is
that an employee might satisfy the first requirement yet still fall outside the scope of
employment—for instance, if his conduct was actuated by a private purpose. See
supra at 44. Not surprisingly, there is a long line of cases concluding that individuals
otherwise engaged in the customary duties of their position veered outside the scope
of their employment because some intentional tort they committed was motivated
by private purposes. M.J. Uline Co. v. Cashdan, 171 F.2d 132 (D.C. Cir. 1948),
offers an especially vivid example. There, a hockey player hit the puck at a bystander
60
(injuring him) in the middle of a game. The district court instructed the jury that the
player was acting within the scope of his employment, but the D.C. Circuit reversed,
explaining that he “may have been, at the moment when he struck the blow,
completely indifferent to the work he was employed to do and actuated only by anger
or hostility toward the man he tried to injure.” Id. at 134. Uline reflects a principle
that has since been applied in many other cases, and that precludes Appellants’
position. E.g., Majano, 469 F.3d at 142; Perks, 251 F. Supp. 2d at 1167; Armstrong,
759 F. Supp. 2d at 94; Penn Cent., 398 A.2d at 30; Coron, 515 A.2d at 438; see also,
e.g., Bamidele, 103 A.3d at 525 (holding that, “[a]t least where intentional torts are
concerned, it is not enough that an employee’s tortious activity occurs while he is on
duty, or even that those duties bear some causal relationship to the tort”).
This leads to Appellants’ second major error: their claim that Trump acted
within the scope of his employment if even a scintilla of the motivation for each of
his statements attacking Carroll was not purely private. See Trump Br. 40-42. That
description of the law is mistaken. As Judge Kaplan recognized, while an “action
need not be ‘wholly in furtherance of the employer’s business’” to fall within the
scope of employment, “a slight purpose to serve the master is not enough.” SPA48
(quoting Blair, 190 A.3d at 226). Therefore, “[c]onduct of a servant [that] is . . . too
little actuated by a purpose to serve the master’ is not within the scope of
employment.” Id. (quoting Bamidele, 103 A.3d at 525) (emphasis added); see also
61
Majano, 469 F.3d at 141 (stating and applying the “too little actuated” test); Overton,
180 A.D.2d at 957 (3d Dep’t. 1992) (disagreeing “that the doctrine of respondeat
superior should apply solely because an activity which benefits an employee
personally could also have a possible benefit to the employer”); Island Associated
Cooperative Inc. v. Hartmann, 118 A.D.2d 830, 831 (2d Dep’t 1986) (citing the
Restatement (Second) of Agency §§ 231, 288); Riviello v. Waldron, 47 N.Y.2d 297,
303 (1979) (holding New York law requires consideration of many factors). 16
Simply put, “a real but insubstantial purpose to serve the master is
insufficient.” SPA51-52. Applied here, that principle supports a clear conclusion:
“Trump’s comments concerned media reports about an alleged sexual assault that
took place more than twenty years before he took office. Neither the media reports
nor the underlying allegations have any relationship to his official duties.” SPA58.
All that is particularly true given the circumstances described above demonstrating
16
Insisting otherwise, Appellants cite Blair v. District of Columbia, 190 A.3d 212
(D.C. 2018). But Blair did not purport to change D.C. law, which has always
followed the Second Restatement of Agency, including its “too little actuated”
principle. See, e.g., Bamidele, 103 A.3d at 525 & n.6 (“We have long endorsed the
Second Restatement’s approach.”); see also Council on Am.-Islamic Relations v.
Ballenger, 444 F.3d 659, 663 (D.C. Cir. 2006) (acknowledging this principle). To
the extent Blair may suggest a more restrictive approach than the D.C. courts have
followed for many decades, that suggestion is dicta, since the facts did not present a
borderline scenario where the difference could have mattered. See Blair, 190 A.3d
at 216-17 (police officer announced he was on duty and instructed people to leave
the premises before his alleged assault on the plaintiff).
62
that his motives in insulting, degrading, and defaming Carroll were indeed
personal. 17
This leads to Appellants’ final and most fundamental error. It is settled law
that the respondeat superior inquiry is intensely context dependent—so much so that
it is presumptively entrusted to juries as a fact issue. See Majano, 469 F.3d at 140-
41 (collecting D.C. cases); Rivera, 34 N.Y.3d at 390 (collecting New York cases).
In contravention of that rule, Appellants essentially ask this Court to hold as a matter
of law that the classically fact-intensive scope-of-employment test is necessarily met
whenever a federal official speaks to the press or responds to critics—without regard
to any other conceivably relevant factual consideration.
The cases Appellants cite do not support that counterintuitive proposition. For
starters, none of them involved defamatory statements remotely as targeted and
personal as Trump’s repeated attacks on Carroll. Nor did they involve circumstances
where the speaker had cause for personal animus and retaliation against someone
who had revealed their own criminal wrongdoing. Instead, most of the cases that
Appellants cite involved workaday statements by Members of Congress on pending
17
The fact that Trump uttered these statements while speaking about other topics is
not a point in his favor. Contra Trump Br. 45. It shows his willingness to take
advantage of his office while pursuing a personal agenda against Carroll. An official
is not free to retaliate against someone who reveals their private sexual misconduct,
so long as they also discuss public policy later in the same interview.
63
legislative matters or events linked to ongoing congressional deliberation. And in
each of those cases, judges relied not on generalities about speaking to the press, but
instead on a careful study of the specific facts surrounding the challenged statements
to assess whether government officials acted in furtherance of their public duties.
In Wuterich v. Murtha, 562 F.3d 375 (D.C. Cir. 2009), for instance, a U.S.
Marine sued Congressman John Murtha—the then-Ranking Member of the House
Appropriations Committee’s Subcommittee on Defense—for remarks he had given
criticizing the Defense Secretary’s handling of the Iraq War. In the course of those
remarks, Murtha stated that a particular squad (in which the plaintiff had served) had
been responsible for the death of civilians in Haditha, Iraq. See id. at 378-80. The
plaintiff alleged that Murtha sought only private political gain by embarrassing the
Defense Secretary. See id. at 384. Faced with these facts, the D.C. Circuit easily
found that Murtha was actuated by a desire to serve the master: “Attacking the
credibility of Defense Secretary Rumsfeld, the man who was the public face of the
war in Iraq, was . . . part and parcel of Congressman Murtha’s job as a legislator
charged with overseeing military affairs and of his efforts to serve his constituents
by advancing legislation to bring home American troops stationed in Iraq.” Id. at
385. Wuterich confirms that when Members of Congress critique Executive Branch
officials and policies, while overseeing those officials and pushing legislative reform
to those policies, they are not acting for private reasons unrelated to their jobs.
64
That said, Wuterich does not stand for the doubtful, disturbing proposition that
anytime a federal officer attacks anyone who has criticized him, he is doing his job.
Contra DOJ Br. 32. Nor does Wilson v. Libby support that position: like Wuterich,
it involved actors and motivations deeply enmeshed in debates over United States
public policy. See 535 F.3d 697, 712-13 (D.C. Cir. 2008) (holding that senior
officials who acted with the goal of defending the administration’s handling of war-
related intelligence were within the scope of their employment in revealing a CIA
operative whose husband had published criticism of U.S. intelligence policy). The
other cases Appellants cite lend even less support to their position. 18
That leaves only Council on American-Islamic Relations v. Ballenger, 444
F.3d 659 (D.C. Cir. 2006), upon which Appellants place principal reliance. See DOJ
18
See Does 1-10, 973 F.3d at 599-601 (Representative Haaland and Senator Warren
acted within the scope of their employment while “reasonably connecting Plaintiffs’
rhetoric and clothing to President Trump in order to comment on an event that had
received widespread press attention and that resonated with the pressing issue of
funding for the border wall”); Williams, 71 F.3d at 507 (Chairman of the House
Appropriations Committee acted within the scope of his employment when he
criticized a lobbyist while discussing the status of an appropriations bill pushed by
that same lobbyist); Operation Rescue Nat’l v. United States, 975 F. Supp. 92, 94–
95 (D. Mass. 1997) (Senator Kennedy acted within the scope of his employment
when he criticized a violent anti-abortion organization while speaking about a bill
he had sponsored—which was set for a vote the next day—meant to protect access
to women’s health clinics from that very group); Chapman v. Rahall, 399 F. Supp.
2d 711, 713-15 (W.D. Va. 2005) (Congressman acted within the scope of his
employment when he criticized a commentator while responding to a question about
his ties to a political group that some constituents associated with terrorism).
65
Br. 31; Trump Br. 34. That reliance is misplaced. In Ballenger, a congressman spoke
to a reporter about the dissolution of his marriage (which he thought his constituents
would care about) and, in the course of that discussion, glancingly stated that CAIR
was the “fund-raising arm for Hezbollah.” Id. at 662. When CAIR sued for libel, the
D.C. Circuit upheld dismissal of its claim, concluding that the Congressman’s
“conduct was motivated—at least in part—by a legitimate desire to discharge his
duty as a congressman,” since there was a “nexus” between answering questions
about his personal life and his ability to carry out his political agenda. Id. at 664-66.
Although this case and Ballenger both involve the discussion of an elected
official’s personal life, that is where the similarity ends. In Ballenger, the evidence
did not disclose any particular reason for the statement about CAIR. There was no
evidence of any animus or retaliatory motive. It appears the Congressman randomly
made a single stray comment about CAIR—a group actively engaged in lobbying
and governmental affairs—while explaining his wife’s dissatisfaction with life in
D.C. Further, he had submitted to the district court a detailed affidavit testifying that
his purpose in discussing his marriage was to ensure his efficacy as a legislator. 19
In contrast, here there is overwhelming evidence that Trump willfully and
repeatedly singled out Carroll for malicious lies. He attacked her three times over
19
See Affidavit of Cass Ballenger, Council on Am.-Islamic Relations v. Ballenger,
366 F. Supp. 2d 28 (D.D.C. 2005) (No. 03 Civ. 2488).
66
four days. He implied that she was too ugly to sexually assault. He accused her of
falsifying experiences of sexual assault by other men. He concocted dark schemes
and imputed vile motives. He did all this against a private citizen (not a leading civil
rights and advocacy organization actively involved in political deliberations). He
acted with obvious private motives—consistent with his prior practice—to punish
and retaliate against her for revealing his decades-old crime. Whereas the statements
in Ballenger register as reckless, Trump knew exactly what he was doing. And he
has submitted no evidence disputing the allegations in the Complaint.
To be sure, Ballenger recognizes that there may be circumstances in which an
official discusses his private life for reasons related to his job. See 444 F.3d at 664-
66. That makes sense: officials may sometimes need to comment on their private
lives to do their jobs effectively. But nowhere does Ballenger (or any other case)
articulate a rule that elected officials always and everywhere act with public
purposes—and thus within their employment—when speaking to the press about
their private lives. To the contrary, Ballenger explicitly denies any broad-based rule
of immunity for “gratuitous slander in the context of statements of a purely personal
nature.” Id. at 666. It then emphasizes that its result “cannot be divorced from its
facts”—which differ mightily from those presented here. See id.
At bottom, Appellants’ theory (which they wrongly impute to Ballenger) is
that federal officials may defame anyone in their dealings with the press—at any
67
time, for any reason, no matter how private the subject matter or how outrageous
their attacks—because doing so might improve their political or electoral position.
That is especially true, it seems, if the target of the officials’ attacks has dared to
criticize them, even for private misconduct that occurred long ago. On that view, the
personal is political: there is no need to demonstrate any connection between the
defamatory statements and some aspect of public policy or administration. Trump
was free to undertake repeated private tortious acts for personal gain, and to be seen
as furthering the interests of his job as President in doing so, since pursuing his own
private interests in punishing Carroll might incidentally result in political gain.
This reasoning is wrong as a matter of respondeat superior law, which looks
to an employee’s actual motive for committing intentional torts. See SPA53
(“[T]here is no basis for concluding that a D.C. court would ignore the nature and
content of his statements and hold that anything he says is within the scope of his
employment.”). It is also wrong in a much deeper sense. No President should be
heard to argue that he is free to willfully injure private citizens who reveal that he
raped them because inflicting such harm might help him politically and is thus part
of his job. That reasoning disgraces the American Presidency and the rule of law. It
most immediately calls to mind King Louis XIV’s declaration, “L’état, c’est moi.” 20
Judge Kaplan recognized the perils of Appellants’ argument. “Accepting it would

20
mean that a president is free defame anyone who criticizes his conduct or impugns
68
In exchange for a promise to serve the country and all who live here, federal
officials are vested with great power. It is a betrayal of this public trust to weaponize
that power while pursuing selfish interests in silencing and retaliating against those
who reveal private malfeasance. A White House job is not a promise of unlimited
authority to brutalize victims of prior wrongdoing through vicious, personal,
defamatory attacks. That is not the law—and this Court should not make it so.
E. At a Minimum, This Court Should Remand to Allow for Discovery
In the district court, Carroll explained that if the court were inclined to grant
DOJ’s substitution motion, it should first authorize limited discovery and hold an
evidentiary hearing to resolve any material factual disputes as to whether Trump
acted within the scope of his employment. A357. Because the district court denied
the motion to substitute, it did not reach that argument. In the event that this Court
were to conclude that the district court erred, the proper course would be to vacate
the judgment and remand for discovery so that the district court may decide the
scope-of-employment issue on a more complete record. See Fountain v. Karim, 838
F.3d 129, 138 (2d Cir. 2016); see also, e.g., Stokes v. Cross, 327 F.3d 1210, 1214
his character—without adverse consequences to that president and no matter what

injury he inflicts on the person defamed. Indeed, the same would be true for many
government officials, who plausibly could argue that criticism of their behavior or
character, even if completely unrelated to their government employment, would
undermine their ability to perform effectively while in office.” SPA54.
69
(D.C. Cir. 2003); Ballenger, 444 F.3d at 663 (recognizing that the district court
authorized discovery); Operation Rescue, 975 F. Supp. at 101 (same).
CONCLUSION
For the reasons set forth above, the decision below should be affirmed.
April 16, 2021 Respectfully submitted,
/s/ Roberta A. Kaplan

Roberta A. Kaplan
Joshua Matz
Raymond P. Tolentino
KAPLAN HECKER & FINK LLP
350 Fifth Avenue | Suite 7110
New York, NY 10118
rkaplan@kaplanhecker.com
(212) 763-0883
Leah Litman
701 South State Street
Ann Arbor, MI 48103
leah@llitman.com
(734) 647-0549
70
CERTIFICATE OF COMPLIANCE
This brief complies with this Court’s Order of April 6, 2021, granting
Appellee’s motion to file an oversized brief of not more than 18,000 words. This
brief contains 17,993 words, excluding the parts of the brief exempted by Fed. R.
App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and the type-style requirements of Fed. R. App. P. 32(a)(6), because this brief has
been prepared in a proportionally spaced typeface using Microsoft Word for Office
365 in size 14 Times New Roman font.
Dated: April 16, 2021 /s/ Roberta A. Kaplan

Roberta A. Kaplan

CERTIFICATE OF SERVICE
I hereby certify that on April 16, 2021, I electronically filed the foregoing with
the Clerk of the United States Court of Appeals for the Second Circuit via the Court’s
CM/ECF system, which will send notice of such filing to all counsel who are
registered CM/ECF users.
Dated: April 16, 2021 /s/ Roberta A. Kaplan

Roberta A. Kaplan

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Case 20-3977, Document 79, 04/16/2021, 3079961, Page1 of 85

United States Court of Appeals

DONALD J. TRUMP , in his personal capacity,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF FOR PLAINTIFF-APPELLEE E. JEAN CARROLL

LEAH LITMAN ROBERTA A. KAPLAN

A. Trump Sexually Assaults Carroll .................................. 3

B. Carroll Publicly Reveals that Trump Sexually Assaulted

C. Trump Slanders Carroll on Three Separate Occasions . . . . . . . . . . . 6

1. June 21, 2019 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2. June 22, 2019 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

3. June 24, 2019 Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

D. Carroll Files Suit Against Trump in State Court ................. 9

F. District Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

G. The District Court’s Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. The District Court Correctly Held That the President Is

1. The Phrase “The Executive Departments” Refers Only

2. Statutory Structure Precludes Interpreting

3. The President Is Not an Officer or Employee of

B. The District Court Correctly Held that the President Is Not

A. New York Law Governs the Scope of Employment

1. Presidents May Unquestionably Engage in Personal

2. Trump Acted for Personal Reasons in Defaming

E. At a Minimum, This Court Should Remand to Allow for

M.J. Uline Co. v. Cashdan,

Richards v. United States,

5 U.S.C. § 693 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 34

Executive and Legislative Authorities

Presidential Succession & Delegation in Case of Disability,

Pet. for Writ of Cert., Trump v. Knight First Amendment Institute,

the Department of Justice (DOJ) to intercede. Following a certification under the

employment—when he repeatedly slandered a private citizen who was no longer

On two separate grounds, Judge Kaplan denied DOJ’s motion to substitute.

text and structure, as well as a host of constitutional, legislative, and judicial

a mess of the statute and offend settled separation-of-powers principles.

scope of his employment when he defamed Carroll. This commonsense conclusion

McGee, 49 N.Y.2d 613, 618-19 (1980). If accepted, Appellants’ extreme position

Court should therefore affirm the denial of DOJ’s motion to substitute.

STATEMENT OF THE ISSUES

1. Is the President an “employee of the government” as that term is

defined in the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671?

2. Assuming the President is an “employee of the government” under the

subjected E. Jean Carroll to willful, outrageous defamatory attacks in retaliation for

STATEMENT OF THE CASE

A. Trump Sexually Assaults Carroll

to help Trump shop for a gift. Id.

department, it was uncharacteristically empty, with no attendant in sight. A29 ¶ 30.

B. Carroll Publicly Reveals that Trump Sexually Assaulted Her

twenty years—not wanting to be perceived or to see herself as a victim of rape. A31

movement empowered survivors of sexual assault to come forward that Carroll

published a pre-publication excerpt from Carroll’s book detailing Trump’s attack.

C. Trump Slanders Carroll on Three Separate Occasions

for speaking up. And he succeeded.

1. June 21, 2019 Statement

On June 21, 2019, a Bloomberg reporter, Laura Litvan, tweeted a statement

from Trump concerning Carroll; the statement appeared to be personally dictated

A327; see A38 ¶¶ 82-83 & n.9.

2. June 22, 2019 Statement

statement in response to a question from a reporter: