Trump Args Canceled After DOJ Atty Denied Courthouse Entry

By Pete Brush
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Law360 (October 21, 2020, 7:02 PM EDT) -- A U.S. Department of Justice effort to argue for President Donald Trump in writer E. Jean Carroll's suit claiming he defamed her took an unusual turn Wednesday when a DOJ lawyer was turned away from a Manhattan courthouse because of New York's COVID-19 out-of-state quarantine restrictions.

U.S. District Judge Lewis A. Kaplan, who is handling the federal government's headline-grabbing bid to take over for Trump's private lawyers in the journalist's punitive damages suit, took to the bench briefly to cancel oral arguments after refusing to adjourn the hearing. The attorneys for both sides were supposed to appear in person.

"The matter is taken under submission. Thank you very much. I'm sorry so many people were inconvenienced," Judge Kaplan said via telephone when calling off a scheduled hourlong argument session. It is unclear when the judge will decide on whether the federal government can properly represent the president, but he said he will do so based on the briefs that already have been filed.

Carroll, a longtime writer for Elle magazine, sued the president in New York state court in 2019 after Trump denounced her in response to her allegation that he raped her in the 1990s. Earlier this year, New York Judge Doris Ling-Cohan declined to dismiss the suit and ordered the sides to prepare for trial.

That led to the DOJ's move in September to intervene and remove the case to Manhattan federal court — and to Judge Kaplan. Carroll's attorney called it unprecedented, while U.S. Attorney General William Barr labeled the move routine.

Wednesday's now-canceled arguments likely would have centered on whether Trump is an "employee" of the federal government under laws including the Federal Tort Claims Act.

The federal government says that law and other federal statutes contain "broad and sweeping language" that allows the DOJ to stand in for Trump, "who is fairly characterized as both an 'officer' and 'employee' of the government."

Not so, according to Carroll's lawyers, who argue that New York law — not federal law — governs the case. In any event, they claim, the federal laws cited by the DOJ do not cover the president.

"More than any other recent president, Trump has repeatedly insisted that aspects of his conduct in office are private and personal," Carroll's filings say.

Judge Kaplan's Wednesday decision came after attorney Stephen Terrell of the DOJ's Civil Division docketed an afternoon letter saying a Justice Department lawyer was denied access to the Daniel Patrick Moynihan U.S. Courthouse in lower Manhattan, where the arguments were supposed to take place.

Terrell said that the lawyer, who was not named, was denied entry "on the grounds that he had traveled from his place of residence in the Commonwealth of Virginia, which yesterday, apparently, was added to the jurisdictions from which the State of New York bans travel."

For more than seven months, New York Gov. Andrew Cuomo has provided residents of the Empire State with daily updates on the COVID-19 pandemic, including the status of out-of-state quarantines. Some states have appeared and disappeared from Cuomo's list several times. He added Virginia to the list of quarantine states in an Oct. 13 advisory, requiring travelers to New York from that state to quarantine for 14 days before appearing in public.

During Thursday's call, a second DOJ lawyer, William Lane, said the government preferred for the judge to take the case on submission rather than arguing via telephone with Carroll's lawyers — and Carroll herself — present in court. Carroll's lawyer Roberta Kaplan pressed the court to hold arguments but was denied.

Afterward, Carroll's lawyer knocked the DOJ's conduct. 

"This is unquestionably a new low for DOJ, which should at least appear in open court to answer for the outrageous positions that it has taken here.  We remain confident that the court will deny the Justice Department's motion, and we look forward to pursuing Ms. Carroll's case in federal court," Roberta Kaplan said in a statement Wednesday afternoon.

Requests for additional comment from the DOJ were not returned. 

Carroll is represented by Roberta Kaplan and Joshua Adam Matz of Kaplan Hecker & Fink LLP.

The government is represented by Stephen Terrell and William Lane of the U.S. Department of Justice's Civil Division. Trump had been represented by Marc Kasowitz, Christine Montenegro and Paul Burgo of Kasowitz Benson Torres LLP.

The case is Carroll v. Trump, case number 1:20-cv-07311, in the U.S. District Court for the Southern District of New York.

--Editing by Steven Edelstone.

For a reprint of this article, please contact reprints@law360.com.

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Case Information

Case Title

Carroll v. Trump, et al.


Case Number

1:20-cv-07311

Court

New York Southern

Nature of Suit

P.I.: Other

Judge

Lewis A. Kaplan

Date Filed

September 08, 2020

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