The MeidasTouch Podcast - DOJ Makes DEVASTATING FILING Against Trump in New York Federal Court

Episode Date: July 12, 2023

MeidasTouch host Ben Meiselas reports on the latest Department of Justice filing in the E Jean Carroll case in New York Federal Court where the DOJ reversed its prior position and has refused to certify that the Donald Trump’s defamatory conduct from 2019 was in the course and scope of his duties in office, thus depriving Trump of any claim for immunity.  Shopify: Sign up for a one-dollar per month trial at https://shopify.com/meidas Remember to subscribe to ALL the Meidas Media Podcasts: MeidasTouch: https://pod.link/1510240831 Legal AF: https://pod.link/1580828595 The PoliticsGirl Podcast: https://pod.link/1595408601 The Influence Continuum: https://pod.link/1603773245 Kremlin File: https://pod.link/1575837599 Mea Culpa with Michael Cohen: https://pod.link/1530639447 The Weekend Show: https://pod.link/1612691018 The Tony Michaels Podcast: https://pod.link/1561049560 American Psyop: https://pod.link/1652143101 Burn the Boats: https://pod.link/1485464343 Majority 54: https://pod.link/1309354521 Political Beatdown: https://pod.link/1669634407 Lights On with Jessica Denson: https://pod.link/1676844320 MAGA Uncovered: https://pod.link/1690214260 Learn more about your ad choices. Visit megaphone.fm/adchoices

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free of charge bet mgm operates pursuant to an operating agreement with iGaming ontario i'm ben micellis from the midas touch network folks this is big the department of justice has just filed a letter brief in the E. Jean Carroll federal docket stating that they will be reversing the position of the United States under Bill Barr and slightly after Bill Barr as the Attorney General and the United States Department of Justice will not be substituting in the United States as a defendant in the federal lawsuit brought against Donald Trump for defamation. Under a law called the Westfall Act, the Department of Justice makes

the determination in the first instance about certifying that this is a case within the course and scope of a president's job responsibilities or any government official's job responsibilities. And if there is a substitution and the Federal Tort Claims Act doesn't provide a remedy, it essentially provides complete immunity for the government employee at issue if indeed the federal judge makes a determination that the Westfall Act is indeed applicable and that the certification is appropriate. So the various appellate proceedings that took place in the first E. Jean Carroll defamation case that was filed back in 2019 because Trump was in office then, that related to the application of the Westfall Act. United States Attorney General Bill Barr at that time, as discovery

was commencing in a state court action brought by E. Jean Carroll, substituted in the United States under the Westfall Act and saying this was within the course and scope of employment for Donald Trump when he made these statements during a press conference and during the press that defamed E. Jean Carroll. And Donald Trump should be entitled to absolute immunity by substituting in the United States government. That brought this case to a federal courthouse before Judge Lewis Kaplan, and ultimately Judge Lewis Kaplan disagreed with the certification by the United States Attorney General Bill Barr and said, this is not within the course and scope of

Trump's employment by saying these heinous and horrific things about E. Jean Carroll. And Judge Louis Kaplan, the federal judge, said Donald Trump shouldn't even be characterized as a government employee for purposes of the Westfall Act analysis. Trump appealed that to the Second Circuit. The Second Circuit, which oversees the United States District Court for the Southern District of New York, said, no, the president is a government employee pursuant to the Westfall Act. But in terms of whether or not the conduct is within the course and scope of the employment of the government official, they certified that question to the D.C. Court of Appeal, the highest court in the district, not the federal court, but the highest district court in the District of Columbia. That's the District Court of Appeal, which

clarified an analysis about whether or not the Westfall Act applies and specifically the course and scope analysis. And what the D.C. Court of Appeal said is that it is a fact-based analysis that focuses on the state of mind of the individual and whether or not it served the desire of being in furtherance of what the employer wanted. So you look at the state of mind at the time the statements were made, and was it in furtherance of the objectives of the office? It's this two-part analysis. But what the D.C. Court of Appeals said is, we're not going to make the determination about whether Trump was or wasn't in the course and scope of employment to satisfy the Westfall Act. And then the question was sent back to the federal court in New York, back to Judge Lewis

Kaplan for the case to go to trial because ultimately it would be a jury question if it's a question of fact whether or not the course and scope of employment was within Trump's duties or not within Trump's duties as the time that he was in office, because that's when he made the first series of defamatory statements. Just so you're not confused, there's two E. Jean Carroll cases. The one that just went to trial, we call E. Jean Carroll II. That was for defamation after Trump left office, as well as claims under the Adult Survivors Act in New York for the underlying sexual assault. E. Jean Carroll prevailed, was awarded $5 million in that matter.

But there was still this other case, E. Jean Carroll won, based on the lawsuit filed in 2019 that was going through the appeals courts on this issue of Westfall Act certification. So in the appeals process, Merrick Garland's Department of Justice actually took the position that without knowing more, under the Westfall Act, they were supportive of Bill Barr's decision. They weren't supportive of Donald Trump's conduct, but they were supportive of defending the office of the presidency, which is the job of the DOJ. And so many people were upset. Merrick Garland, you're supporting Donald Trump's defense here under the Westfall Act. Well, now there's a reversal, of course. this letter that was submitted to Judge Lewis Kaplan because Judge Lewis Kaplan requested

that the Department of Justice, after seeing the amended complaint filed by E. Jean Carroll based on all of the new information, including subsequent defamatory statements after E. Jean Carroll won the trial and E. Jean Carroll, too, was awarded $5 million, that the government provide its position to Judge Lewis Kaplan about whether or not they were going to certify that this is a case involving the United States government. So it should be E. Jean Carroll versus United States government or whether they were not certifying it. You should know what that sound means already. That's the best kind of notification. That's the sound of another sale on Shopify

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possibility powered by Shopify. Sign up for a $1 per month trial period at shopify.com slash Midas, all lowercase. Go to shopify.com slash Midas to take your business to the next level today. shopify.com slash Midas. There was a reversal, of course, that based on the information that was developed in the trial itself, E. Jean Carroll 2, and based on Donald Trump's continuous defamatory statements about E. Jean Carroll, and based on the guidance now provided by the Washington, D.C. Court of Appeal about the state of mind requirement and in furtherance of the employment requirement. In this letter, the Department of Justice says, we can no longer say that this is something that the United States should substitute in for. This is a question of fact. This is a jury question. We are no longer substituting in for the United States. In other words, Donald Trump, you are on your own here. This is big. This is a big reversal, of course. And let me kind of read for you some of the key portions here. This is the letter sent by and

filed on the docket by the Department of Justice. It states, Dear Counsel, I write to inform you that in light of the D.C. Court of Appeals' clarification of the standard of responde a superior liability, that just means in course and scope basically, under D.C. law, as well as new factual developments, the Department of Justice is declining to certify under the Westfall Act, 28 U.S.C. Section 2679D, that defendant Donald Trump was acting within the scope of his office and employment as President of the United States when he made the statements that form the basis of the defamation claims and plaintiffs amended complaint in this action. It goes on to explain the Westfall Act.

Under the Westfall Act, federal employees are entitled to absolute immunity from personal tort liability for conduct occurring within the course and scope of their employment. It talks about how the D.C. Court of Appeals clarified the meaning of this standards. The court explained that the question about whether conduct is actuated, at least in part by a purpose to serve the employer, contains distinct components, two of which are relevant here, the purpose element and the quantum element. The purpose element is an inquiry into the employee's state of mind to determine whether the employee was motivated by a purpose

to serve their employer. The quantum element requires that the employee be motivated, at least in part, by a purpose to serve the employee. And then it gives the analysis right here. It says, no direct evidence of the former president's state of mind in making these statements is available. The circumstantial evidence of Trump's subjective intent in making the allegedly defamatory statements does not support determination in this case that he was sufficiently motivated by a desire to serve the United States government. There is some evidence that could, in some circumstance, support certification. He was responding to allegations that could have called into question his fitness

for the office of the presidency. In addition, the statements at issue were drafted or made at the White House in response to inquiries made to the White House through official channels of the president through the kind of gaggle process. However, what the D.C. Court of Appeal has now made clear is that D.C. law does not hold that any statement, whatever its actual purpose, is by definition made for official purposes simply because they were using official channels. And then it goes on to talk about Donald Trump's conduct here. Although the statements themselves were made in a war context, the allegations that prompted them were purely personal in nature. An alleged sexual assault that occurred decades prior to Trump's presidency. The assault was obviously not job

related. As a general matter, an election official's ability to retain the trust of his constituents, including by addressing their concerns and informing them of his views on issues they care about, or by discussing personal matters that may pertain to the public's confidence in him, is important to his ability to effectively perform his job. But that background principle cannot overcome countervailing evidence that an official who made defamatory statement was insufficiently actuated by public purpose to justify a finding that he was acting within the scope of his employment. It says Trump's statements regarding Ms. Carroll continued after Trump left office,

as indicated by the new allegations here. The later statements are substantially similar to the June 2019 statements while he was in office. Second, the prior history between Carroll and Trump supports a determination that Trump's statements were not sufficiently motivated by his purpose to serve the government. And third, certain aspects of the content of the statements at issue and subsequent statements by Trump go far beyond merely denying Carroll's accusation. And it goes on to cite the despicable things that Donald Trump said about her. And then it says the department has to take a holistic approach and it is therefore declining to certify Trump. You are on your own. Good luck in Trump trial or E. Jean Carroll case number one,

where now you've already been found to have engaged in the underlying conduct. You are found to have engaged in defamation. And so really what the issue comes down to at this point is going to be damages as well as punitive damages. So this is a big move by the DOJ. And for all the people who are very critical of Merrick Garland out there, this was another very smart move and Merrick Garland doing the right thing here. I'm Ben Micellis from the Midas Touch Network. Hit subscribe. We're on our way to 1.5 million subscribers. Thanks to your support. Check us out at patreon.com slash Midas Touch, wherever you get audio podcasts. Subscribe to the MidasTouch podcast. Hit subscribe right now on our YouTube channel. Hey, Midas Mighty. Love this report? Continue the conversation by following us on Instagram, at MidasTouch, to keep up with the most important

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