Renee in the Park, Oil on Canvas, 47" x 66", Richard J Van Wagoner, Courtesy of Van Wagoner Family Trust**

In the mid-90s Donald J. Trump raped E. Jean Carroll in a Bergdorf Goodman dressing room, Carroll accuses. Her allegation against then private citizen Trump came to light after he was elected and sworn in as president. As Trump does when women credibly accuse him of sexual assault, he declared Carroll a “total liar.” He went on to claim they’d never met — despite photographic evidence to the contrary — and defended his personal honor by assuring that Carroll fell outside the “type” of woman he would be interested in — raping?. He made the denials to two news outlets and issued a written statement claiming her accusations were “totally false,” politically motivated and to sell a book.

Carroll didn’t take well to being called a “total liar.” In November 2019, she sued Trump in New York state court for personal injury in the form of defamation, seeking unspecified damages including punitive damages for the libel and slander.

Trump did everything he could to persuade the state court judge to dismiss the lawsuit, without success. Based on United States Supreme Court precedent including that issued in July this year, the state judge permitted Carroll’s defamation case against Trump to proceed.

The dates for Trump’s deposition and court-ordered production of a DNA sample for comparison against “unidentified male DNA” found at the time on Carroll’s dress were closing in.

Rather than jump on the opportunity for self-vindication by producing globs of DNA — certain proof that Carroll truly fell outside the “type” of women Trump would be interested in — raping?, Trump had Barr take what many people consider a dubious, albeit clever, legal maneuver to buy time and, possibly, terminate the lawsuit against his boss. If it works, Carroll’s defamation suit against Trump will come to a premature, abrupt end. If it doesn’t work, Carroll’s suit, and Trump’s production of DNA and deposition, will be delayed until well after the election.

The familiar refrain.

On September 8, 2020, Barr’s Department of Justice filed a motion in the Southern District of New York federal court to substitute the United States for Trump in Carroll’s pending state-court defamation case against Trump. The Department of Justice would be taking over the defense.

As with others of Barr’s many questionable, political and deceitful acts, several people in my sphere asked what has become a frequent question: “What the f**k?

My apologies for being pedantic in answering a mostly rhetorical question. A few related legal concepts are in play.

• First, the United States is a sovereign entity. The power to sue, like the power to tax, is the power to destroy. The United States, under the Constitution and by statute, protects its sovereign integrity by controlling when, where and under what circumstances it may be subject to suit.

• Second, the United States acts through its officers and employees. As a general proposition, when those officers and employees act “within the scope” of their “office” or “employment” with the federal government, they are shrouded with the protections the Constitution and Congress afford the United States as a sovereign entity. Conversely, when they act outside or beyond the scope of their office or employment with the federal government, again as a general proposition, they do not enjoy those protections.

• Third, Congress passed what is known as the Federal Tort Claims Act. That law provides the exclusive mechanism for people to bring personal injury claims against certain officers and employees who were acting within the scope of their office or employment with the federal government at the time of the incident out of which the claim arose.

• Fourth, when someone sues a federal officer or employee in state court for personal injury (including defamation), federal law provides the means for that lawsuit to be removed from the state court and brought into federal court. That mechanism requires an authorized Department of Justice designate, by delegation from the Attorney General, to provide “statutory certification that the Federal employee was acting within the scope of his office or employment with the Federal Government at the time of the incident out of which the suit arose.”

• Fifth, based solely on that “certification,” the United States is substituted for and takes the place of the named officer or employee as the sole defendant in the lawsuit.

• Sixth, as lawyers for the United States, the Department of Justice steps in as counsel for the substitute defendant.

• Seventh, the Federal Tort Claims Act prohibits lawsuits against the United States for defamation.

Barr’s September 8, 2020 filing claims, among other things:

“[T]he United States removed the action to this Court upon certification from James G, Touhey, . . . United States Department of Justice, that President Trump was acting within the scope of his office at the time [Trump declared Carroll a ‘total liar’ for having accused him of raping her some two decades before he became a federal officer] . . . .

“Once the Attorney General certifies that the defendant federal officer was acting within the scope of his office at the relevant time, the statute itself provides that the United States ‘shall’ be substituted as the sole defendant in the action. . . .

“’[T]he . . . certification must be respected unless and until the District Court determines that [the federal officer], in fact, engaged in conduct beyond the scope of his employment.’”


As of now, Carroll’s lawsuit is not in New York state court against defendant Trump. Instead, the case is in the United States Court for the Southern District of New York against the United States of America. Under the pretext of protecting the sovereign integrity of the United States, the substitute defendant, the United States of America, is represented by the Department of Justice at taxpayer expense.

And, of course, the United States has not granted an exception to its sovereign immunity for defamation claims against the substitute defendant the United States of America.

Slate had the best headline, in my opinion: When You’re President, They Let You Do It. The article goes on to say it well:

“Stop and consider for a moment that the Justice Department is arguing — in the words of Roberta Kaplan, Carroll’s attorney — that ‘when [Trump] lied about sexually assaulting our client, explaining that she ‘wasn’t his type,’ he was acting in his official capacity as President of the United States.’ Beyond the mere act of, once again, conscripting the Department of Justice into acting as his personal Roy Cohn, Trump now has his attorney general claiming that when Trump insults, demeans, and belittles women, he is ‘acting within his scope of office as President.’ This logic suggests that if Donald Trump were to say, just for instance, that women let him grab their private parts because when you’re famous, they let you do it, some attorneys employed by the government would likely argue that he is saying that in his capacity as president as well. In other words, the stuff that once horrified you in the Access Hollywood tapes four years ago? Now those kinds of comments could just be considered ‘presidential acts.’”


Barr’s position is, in my view, weak at best. Expect a challenge to the application of the Federal Tort Claims Act to the president, although based on precedent, that challenge will likely fail.

The more significant and likely successful challenge will be to the so-called certification that Trump was acting within the scope of his office when he, as part of his duties and on behalf of the people of the United States of America, declared Carroll a “total liar” for accusing him of raping her when he was a private citizen.

If the federal judge concludes Trump was not acting within the scope of the office of president of the United States when he declared Carroll a “total liar,” and the appellate courts agree, Carroll’s case will survive and, eventually — in 2021 or 2022 — be remanded to the originating New York state court to pick up where it left off.

If the federal judge concludes Trump was so acting and the appellate courts agree, Carroll’s case will be over.

Please keep in mind the precedential effect of a court decision that Trump was acting within the scope of his office when he declared Carroll a total liar for accusing him of raping her when he was private citizen.

*My brother the very talented fiction writer and novelist, Robert Hodgson Van Wagonear, deserves considerable credit for offering both substantive and technical suggestions to https://medium.com/@richardvanwagoner and https://lastamendment.com. Rob’s next novel, a beautifully written suspense drama that takes place in Utah, Wyoming and Norway, will be published by Signature Books this fall. This novel, The Contortionists, the story of a missing child in a predominantly Mormon community, is a psychological page-turner.

**Richard J Van Wagoner is my father. His list of honors, awards and professional associations is extensive. He was Professor Emeritus (Painting and Drawing), Weber State University, having served three Appointments as Chair of the Department of Visual Arts there. He guest-lectured and instructed at many universities and juried numerous shows and exhibitions. He was invited to submit his work as part of many shows and exhibitions, and his work was exhibited in a number of traveling shows domestically and internationally. My daughter Angela Moore, a professional photographer, photographed more than 500 pieces of my father’s work. On behalf of the Van Wagoner Family Trust, she is in the process of compiling a collection of his art work. The photographs of my father’s art reproduced in https://medium.com/@richardvanwagoner and https://lastamendment.com are hers.



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