Are members of Congress or the President immune from defamation suits? Officially, the law provides for no such immunity. However, a line of cases interpreting the Federal Tort Claims Act and the Westfall Act threaten to create such an immunity for all elected officials. In such a world, powerless people can be defamed by the most powerful officials in the country without any recourse in the court system to preserve their reputations.
Journalist E. Jean Carroll discovered the potential for such an immunity when she brought a defamation suit against President Donald Trump after he denied her allegations of rape and accused her of lying to sell her new book. The Department of Justice intervened on the President’s behalf, certifying that he was acting within the scope of employment when he denied Carroll’s allegations.
In October 2020, Judge Lewis Kaplan denied the Attorney General’s certification, allowing the case to proceed. As the Biden administration pursues an appeal, Judge Kaplan’s decision looks less like a victory for defamed parties and more like an open question. Thus, although it highlights the potential injustices of the Westfall Act, Judge Kaplan’s decision does little to fix the issue.
This Note proposes a solution in the form of a legislative amendment, which would create a list of exceptions where elected officials cannot use the Westfall Act, so that they would no longer be allowed to defame at will. The amendment would retain protections for lower-level employees while opening elected officials up to suit only in the most specific of cases.
Sean Buxton, ADMINISTRATIVE LAW—DEFAMATION BY THE NATION: THE WESTFALL ACT AND SCOPE OF EMPLOYMENT FOR ELECTED OFFICIALS, 44 W. New Eng. L. Rev. 119 (2022), https://digitalcommons.law.wne.edu/lawreview/vol44/iss2/1