What seems like a lifetime ago (i.e., sometime in September) there was controversy about the Justice Department’s decision to intervene in a state court defamation suit against President Trump brought by E. Jean Carroll, a woman who has accused Trump of sexually assaulting her in the 1990s, for statements Trump made publicly about Carroll during his time in office. According to Carroll’s lawsuit, Trump defamed her by (among other things) falsely asserting that she had invented her accusation for political reasons or in order to sell books. The Justice Department filed a certification under the Westfall Act that these defamation claims fell within the scope of Trump’s employment as president, which resulted in the case automatically being removed to federal court. Unless Carroll is able to successfully challenge the certification before the federal court, her case becomes one against the United States, rather than Trump personally, and will ultimately be dismissed because under the Federal Tort Claims Act the United States retains sovereign immunity for intentional torts.
Although it was widely claimed that DOJ was acting improperly by intervening to protect Trump’s personal interests, even many of the president’s sharpest critics grudgingly acknowledged that this was not the case. As I pointed out on Twitter and in the press, DOJ’s action was most likely correct and certainly reasonable under existing case law. The fact that a woman who was (allegedly) defamed by her (alleged) rapist could be without any remedy for defamation because the rapist was a federal official when he made the defamatory statements is counterintuitive and morally appalling, but (for reasons we have previously discussed) it is the law. The key legal question is whether Trump’s statements are considered to have been made within the scope of his employment, a determination that is made under the governing state law and will most likely be made in Trump’s favor.
Now we may face a different tort question arising from Trump’s positive test for Covid-19 and allegations that he held or attended various events knowing that he and/or others had tested positive or likely were positive and that he failed to take appropriate precautions to protect guests and workers at these events from possible infection. As suggested by @jedshug on Twitter, individuals infected by Trump or at events he sponsored could seek to sue him for recklessly endangering their health. I have no idea whether there would be a viable cause of action in any state where such infections might have occurred, but for arguments sake let’s assume there is.
The analysis of such claims would then differ depending on the nature of the “super spreading” event in question. If it was an official event, such as the White House ceremony announcing the nomination of Amy Coney Barrett to the Supreme Court, it seems likely that Trump’s actions would be considered to be within the scope of his employment and therefore the United States would be substituted as a defendant in any suit brought against him. Unlike the defamation claim brought by Carroll, though, the plaintiffs in such cases would not necessarily be out of luck. They could still recover damages against the United States because torts involving negligence or recklessness are not barred by the FTCA. (There are, however, other potential obstacles to recovery, including whether the claims were grounded in official acts for which the president enjoys absolute immunity).
On the other hand, Trump’s attendance at political fundraisers would most likely not be considered to be within his scope of employment because these are by definition nonofficial and personal in nature. One can imagine the argument being made that some aspect of Trump’s attendance should be considered within the scope of his employment and therefore the Westfall Act and FTCA applied. While it would be difficult to fully appraise such an argument without knowing the precise claims made and the state law that governs, my sense is that this would be pressing the outer bounds of scope of employment even under the existing case law.
As an example, back in the day there was a congressman from South Dakota named Bill Janklow who tragically killed a motorcyclist while driving to his home from an event elsewhere in the state. Not only did Janklow violate the speed limit and disregard a stop sign, but he had a long history of prior driving citations. He was convicted of reckless driving and manslaughter for his actions. Nonetheless, when the motorcyclist’s family brought suit against him, the court upheld DOJ’s certification that he was acting within the scope of employment. The fact that Janklow was acting in a reckless and even criminal manner, the court found, was not relevant; what mattered was that the event Janklow had attended (a ceremony honoring Korean war veterans) constituted congressional business and “[i]is readily foreseeable that a Congressman serving a district as vast and rural as South Dakota would drive an automobile when commuting between his office and meetings with his constituents.”
Had Janklow been returning from a political fundraiser or campaign event, however, the result would likely have been different. As the former head of the federal torts claims branch at DOJ, Jeffrey Axelrad, told Roll Call at the time, the department would not certify that a lawmaker was acting within the scope of his employment if he was in a traffic accident on the way back from such a political event.