Thread by @AkivaMCohen, OK folks, time for an E Jean Carroll v. Trump thread. The [...]

OK folks, time for an E Jean Carroll v. Trump thread. The DoJ has intervened in her defamation case under something called the "Westfall Act", asking to take the case to federal court (out of NY State) and taking over Trump& #39;s defense.

I don& #39;t think it legally can

A comment: this is very much NOT my practice area, so I& #39;ll defer to folks like @Popehat and @MarkSZaidEsq if they have a different view of the statutes. But as I read the Westfall Act, the President is not an "employee of the government" that the DOJ can intervene for

This - it seems to me - is a basic issue of statutory construction (for the laypeople: "statutory construction" means "how a court will read and interpret a statute when its meaning is contested").

And it will be contested. @kaplanrobbie is a very smart attorney so she& #39;s probably caught this issue already: the Westfall Act uses a narrower definition of "employee of the Government" than you& #39;d expect, and it appears to exclude the President (and others!).

tl;dr, @kaplanrobbie: the Westfall Act has a loophole that leaves out the President, VP, NSC, and other employees of the Office of the President, since the Office of the President isn& #39;t an "Executive Department"

Let& #39;s go through it

The key Westfall Act section is at 28 USC 2679 (that& #39;s "Section 2679 of Title 28 of the U.S. Code [our federal statutes]"). Here it is, and we& #39;ll go subsection by subsection, focused on Sections (b), (c), & (d) (which are the relevant part) https://www.law.cornell.edu/uscode/text/28/2679">https://www.law.cornell.edu/uscode/te...

Subsection (b)(1) provides that a plaintiff with a damages claim against "any employee of the Government ... acting within the scope of his office or employment" is limited to certain types of actions.

People have focused on "scope of employment" but "employee of the Government" is where the action should be. So keep that phrase in mind

Subsection (c) provides that the Attorney General "shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury." That& #39;s what Barr just invoked.

Note, again, "employee of the Government"

Subsection (d) provides for removal to federal court of any such case - meaning the case is transferred from state court to federal court - and substitution of the United States as the defendant (i.e. no more suing Trump personally)

All of this requires that the case be against an "employee of the Government"

The President is not that

"What," you say, incredulous. "Of course he is! He& #39;s as Officer of the United States! It& #39;s in the Constitution"

Yes. So what? That& #39;s not what the statute says. It says "employee of the Government." And, helpfully, the statute provides a specific definition.

Section 2671 defines "employee of the government" as an "officer or employee of a federal agency"

Is the President an "officer or employee of a federal agency"? No.

Because 2671 also defines (for purposes of this law) "federal agency" https://www.law.cornell.edu/uscode/text/28/2671">https://www.law.cornell.edu/uscode/te...

"Federal Agency" (in this law) "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"

That distinguishes between the Executive, Judicial, and Legislative branches of the Federal Government. The entire Legislative and Judicial *branches* are "federal agencies" for these purposes, so any "officer or employee" of the Legislative and Judicial branches is covered

But for the Executive branch, only the "executive departments" - not the branch as a whole - is a "federal agency" for purposes of the Westfall Act.

That distinction makes a huge difference. If only the departments, not the branch as a whole is an agency, then only "officers or employees of the executive departments" are "Government employees". Not Executive branch employees who aren& #39;t employed by an executive department

OK. So is the President an "officer or employee of an executive department"?

The answer seems to be "no". A different statute defines the "Executive Departments" as the 15 cabinet level departments: State, Treasury, etc. https://www.law.cornell.edu/uscode/text/5/101">https://www.law.cornell.edu/uscode/te...

Those Departments (and their officers) REPORT to the President, but he isn& #39;t an employee or officer of the department itself.

As I said, tl;dr: the Westfall Act has a loophole that leaves out the President, VP, NSC, and other employees of the Office of the President, since the Office of the President isn& #39;t an "Executive Department"

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