by Terrance Kible
Vice President Kamala Harris’s tie-breaking vote confirmed Judge Loren AliKhan to the federal bench for life after AliKhan helped along a defamation lawsuit against former President Donald Trump. Ironically, according to Politico, Harris has expressed support for President Biden’s plans to impose term limits on Supreme Court justices who at the moment, like AliKahn, enjoy lifetime tenure.
The vote, which installed AliKhan (pictured above, right) on the U.S. District Court for the District of Columbia, also made Harris the vice president with the most tie-breaking votes cast in U.S. history.
Harris’s December 5, 2023, vote broke a 50-50 tie in the U.S. Senate largely along party lines. Sen. Joe Manchin, I-W. Va., then a Democrat, voted against AliKhan’s confirmation.
Less than eight months before Harris’s vote, on April 13, 2023, AliKhan, then a judge on the state-level equivalent of the Court of Appeals for the District of Columbia, joined an opinion that helped E. Jean Carroll’s defamation lawsuit against Trump proceed.
The AliKhan-endorsed opinion figured heavily into a decision by the Department of Justice (DOJ), which previously argued Trump was immune from Carroll’s lawsuit, to reverse course and concede Trump could be held liable personally.
The DOJ, under the Trump administration, argued that Trump had legal immunity. The about-face happened under the Biden administration, reversing course almost wholly based on the April 13, 2023 D.C. Court of Appeals opinion in which AliKhan joined.
After Carroll sued Trump in November 2019, the DOJ moved to substitute the U.S. as the defendant under the federal Westfall Act, “which immunizes federal employees from personal liability and allows for potential recovery against the United States if liability is found.” Under the Westfall Act, the offending conduct must fall within the employee’s scope of employment to qualify.
When the Westfall Act applies, the U.S. is substituted as the defendant in a lawsuit against a federal employee.
The DOJ’s invocation of the Westfall Act also transferred Carroll’s lawsuit, filed in N.Y. state court, to a federal court, namely the U.S. District Court for the Southern District of New York (SDNY).
Carroll opposed the substitution, and SDNY Judge Lewis Kaplan sided with her, finding that Trump was not an “employee” of the U.S. under the Westfall Act and that, even if he were an employee of the U.S., his allegedly defamatory statements were not within the scope of his employment.
Trump appealed the unfavorable ruling to the U.S. Court of Appeals for the Second Circuit, which disagreed with Kaplan and found Trump, as president, was an employee of the U.S. under the Westfall Act. The question before the Second Circuit then became whether Trump’s comments about Carroll fell within the scope of his employment. Because Trump made his comments in the District of Columbia, that jurisdiction’s law applied.
If the comments fell within the scope of his employment, then Carroll would have to sue the U.S., not Trump. Otherwise, Carroll’s lawsuit against Trump could proceed. Because the U.S. had not waived its sovereign immunity for defamation claims, the substitution would have required the dismissal of her new claim against the U.S.
The D.C. Court of Appeals, in the April 13, 2023 opinion which AliKhan joined, clarified District of Columbia law as to whether an employee’s conduct falls within the scope of his employment but also “declined to resolve whether the former President was acting within the scope of his employment in the first instance, and leave for the Second Circuit or Southern District of New York to resolve whether the former President was acting within the scope of his employment in the first instance, consistent with District of Columbia, as clarified herein.”
The Second Circuit did not delve into the facts of whether Trump’s comments did or not meet the D.C. law regarding immunity, and on April 21, “remanded the case to the district court for further proceedings consistent with the detailed guidance provided by the D.C. Court of Appeals.”
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Terrance Kible is a national security correspondent at Just the News.
Photo “Kamala Harris” by Kamala Harris.
