Libel Lawsuits Against Federal Government Officials (E.g., Senator Warren or President Trump)
[1.] In 2019, magazine columnist E. Jean Carroll wrote a memoir in which she accused President Trump of having sexually assaulted her in the 1990s. President Trump denied it, and essentially accused her of lying. Carroll sued for libel.
A few days ago, the Justice Department intervened to take over the case, move it to federal court, and substitute the U.S. as a defendant instead of President Trump; and if that succeeds, then the lawsuit will promptly get dismissed, because the U.S. has retained its sovereign immunity against defamation lawsuits. Can they do that?
[2.] Well, it looks like they can, under a little-known statute called the Westfall Act. To illustrate the normal Westfall Act case, we can look at a different libel lawsuit, by the Covington Catholic High School students against Senator Elizabeth Warren and Representative Debra Haaland. Warren and Haaland had called the students’ conduct at the now-famous political demonstration a “display of blatant hate, disrespect, and intolerance,” and made various other statements about the matter. The students sued, and on Sept. 3 the Sixth Circuit affirmed the dismissal of their case: Under the Westfall Act,
[T]he United States shall be substituted for the employee as a defendant in any common law tort action initiated against an employee if the employee was acting within the scope of employment.
Warren and Haaland were acting within the scope of employment because commenting on “current events” is part of legislators’ jobs. And once the U.S. is substituted as a defendant, the case can be dismissed altogether, because “the United States has not waived its [sovereign] immunity to libel suits” (see the Federal Tort Claims Act). Federal government officials, thus, can commit l
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