Trump caught in DISGUSTING SCHEME with Supreme Court

0:00 You're watching the Legal Breakdown, Glenn.

0:01 We have a major update on a case that I think most people have forgotten.

0:04 That is Donald Trump's uh loss to Carroll

0:08 for $83.3 million in a defamation case.

0:11 Can you explain what this update is?

0:13 Brian, this is like the Department of Justice throwing a Hail Mary

0:17 pass and ain't nobody in the end zone there to catch it.

0:21 Now, I'm not pretending that Clarence Thomas or, you know,

0:25 Sammy Alito won't come running out of the tunnel

0:28 trying to catch the pass for Donald Trump.

0:30 Okay, enough with the football references.

0:33 This is really a last-ditch attempt to prevent Donald

0:37 Trump from having to pay out millions of dollars.

0:40 Remember, he lost not just one but two defamation cases to E.

0:45 Jean Carroll.

0:45 Here's what he's trying to do.

0:47 He is trying to, again, try to convince the court that the Department

0:52 of Justice should be allowed to substitute itself for him,

0:58 Trump, in this lawsuit at this 11th hour.

1:01 Take Trump out of the lawsuit,

1:03 let the Department of Justice become the defendant,

1:07 and if that happens, you know what happens to the whole thing?

1:11 It gets thrown out because, basically,

1:13 the law says you can't successfully sue the federal government,

1:18 the Department of Justice,

1:20 once a decision has been made that the first defendant,

1:24 Donald Trump, was acting within the scope of his official duties.

1:28 It is only if a court concludes he's acting within

1:32 the scope of his official duties that the law, the Westfall Act,

1:35 allows Donald Trump to be taken out

1:38 and the Department of Justice to be substituted,

1:41 and then the case gets dismissed.

1:43 The reason I say this is a Hail Mary pass with nobody standing in the end

1:47 zone is because because Donald Trump tried

1:49 this in the trial court and he failed.

1:53 Donald Trump tried it in the court of appeals

1:56 and he failed and an important procedural footnote here.

2:01 At one point the court of appeals sent it back

2:03 to the trial court for continued proceedings in the case

2:07 and Donald Trump failed to raise it again which procedurally Brian

2:13 he had to do if he wanted to preserve the issue

2:17 because not only did the second circuit court of appeals

2:20 rule against him it expressly said oh and by the way

2:24 belt and suspenders Donald Trump waived the issue by failing

2:28 to raise it again in the trial court and it's unbelievable

2:31 that this is now headed up to the Supreme Court

2:34 and the Supreme Court has not agreed to take it for review

2:38 but Trump and the Department of Justice are not just

2:42 working together but colluding against E Jean Carroll hoping against hope

2:47 that the Supreme Court one will accept it for review two

2:52 do something that the facts do not support and that Donald

2:56 Trump waived previously and three they will grant the motion allow

3:01 DOJ to substitute itself and throw the whole damn thing out.

3:06 Brian this is wrong on the facts this is wrong

3:09 on the law and this is wrong on the procedure because right

3:14 now the Supreme Court doesn't even have the ability the jurisdiction

3:18 to do this thing that Donald Trump and the DOJ are

3:22 urging it to do all of that being said maybe

3:26 Clarence Thomas and Samuel Alito are you know suiting up putting

3:30 on the pads and getting ready to run into the end

3:32 zone to see if they can catch that pass for Donald Trump.

3:36 Glen you had mentioned the Westfall Act.

3:38 Westfall Act prevents government employees from being

3:40 sued for stuff like defamation while they're acting

3:42 in their official capacities but Trump wasn't president

3:45 when this second bout of defamation took place.

3:49 He had already left office.

3:51 He decided to defame E Jean Carroll after she'd

3:53 already won a $5 million uh judgment against him.

3:57 And so, I mean, just on its face,

4:00 how could you How could you claim that the defendant here should be swapped out

4:05 from Trump to the federal government when Donald

4:08 Trump wasn't even when he was a private citizen?

4:10 Like, how would that even work on its face?

4:12 So, I think it only works for one of the two lawsuits,

4:16 one of the two judgments that E.

4:17 Jean Carroll won against Donald Trump because if my memory serves,

4:21 and it's not perfect,

4:22 during one of the alleged incidents of defamation, Trump was president.

4:27 That is the one where he tried to claim he was acting within his official

4:32 presidential duties when he defamed a woman

4:36 he he was alleged to have sexually assaulted.

4:39 So, there is at least some claim that because he was a government official,

4:45 they can at least argue the Westfall Act should apply.

4:48 But the other suit, when he was not a president and he defamed her, again,

4:52 remember he kept defaming her because nobody

4:55 can accuse Donald Trump of learning his lesson.

4:57 That one doesn't even have the Westfall Act claim available,

5:01 weak though it may be in the other case.

5:03 So, you know, this is there's a lot of moving pieces here,

5:06 but you're right in that the only time

5:09 the Department of Justice can even try to substitute

5:13 itself for Donald Trump in litigation is when

5:17 the when the incident occurred while Donald Trump was president.

5:21 Glenn, is it customary that the United States

5:24 Supreme Court would ever weigh in on a case

5:26 like this, a defamation case regarding somebody who

5:30 was a private citizen when the violation took place,

5:33 that that now it's going to be possible that the US Supreme Court takes one

5:38 of the thousands upon thousands of cases

5:41 that that are requested for them to hear,

5:43 that one of those may be used uh, on Donald Trump's defamation case?

5:47 It's possible, but it's certainly not probable.

5:50 But, but the reality is, Brian, any federal case, right?

5:54 Cases in the state court, we're going to set those aside.

5:57 Any federal case, whether it's defamation

6:00 or a massive RICO prosecution, you know,

6:03 any federal case can be accepted for review by the Supreme Court,

6:08 typically only if there are one of two things present.

6:12 One, there is an important constitutional issue, you know, involved.

6:18 Maybe it is an issue where there is some uncertainty,

6:21 and the Supreme Court wants to take it and announce

6:23 a definitive ruling to lay a constitutional question to rest.

6:28 Or, if there are cases that have

6:30 been decided in separate federal jurisdictions, you know,

6:34 like one in the Ninth Circuit Court of Appeals out west,

6:37 and one's like here in the Second Circuit Court of Appeals.

6:40 And those two precedents conflict with one

6:43 another in how they interpret either a law,

6:46 a federal statute, or the Constitution.

6:49 We call that a split in the circuits.

6:51 That is an instance where the Supreme

6:53 Court would ordinarily want to exercise jurisdiction,

6:57 because all of the federal, uh,

6:59 circuits have to kind of be guided by one unified precedent or principle.

7:05 And that's when the Supreme Court might get involved.

7:08 As I see it, neither of those two things are at play in the E.

7:12 Jean Carroll defamation case.

7:14 So, I I see I think it's very unlikely that even this Supreme Court,

7:20 compromised though it seems to be at times,

7:23 would exercise jurisdiction over this case,

7:26 and even more importantly, this issue, which really is not a live issue,

7:31 because neither the facts nor the law support it.

7:34 And from the procedural point of view, it was waived in the court below.

7:39 So, they don't even really have anything to take

7:42 up and decide because this issue was waived previously.

7:46 So, I think it extraordinarily unlikely

7:50 that the Supreme Court will accept review.

7:53 Uh but again, I'm always going to throw the caveat out there

7:55 that this Supreme Court has done things

7:58 that the Constitution doesn't seem to permit,

8:01 like granting a president absolute immunity to violate the laws of our nation,

8:06 victimize the American people,

8:08 and do it without running the risk of being held accountable, being prosecuted.

8:12 That's kind of the opposite of what the United States Constitution provides.

8:16 You know, a president shall take care

8:18 to faithfully execute the laws of the country.

8:20 So, all bets are off with respect to, you know,

8:23 putting any money on what this Supreme Court will do.

8:27 Now that this thing is may or may not be headed to the US Supreme Court,

8:31 if the Supreme Court denies uh Trump's request

8:34 to have them hear this case, is that it?

8:37 Is that the end of the line?

8:38 Because this thing has been going on for the better

8:40 part of a decade at this point.

8:42 And so, in terms of actually getting a final resolution here at the hands

8:45 of somebody who is an expert uh at dilatory tactics in the court system,

8:52 and that's Donald Trump, is this the legitimate true end of the line?

8:57 Yeah, if there's any good news in what seems to be

9:00 the endless court challenges mounted by Donald Trump anytime he loses a case,

9:07 here is the good news.

9:08 The There will be no further appeals if the Supreme

9:11 Court finally says with respect to both of these cases, "Done.

9:15 We're not accepting either one for review.

9:18 It's over." And here is the good news for E.

9:20 Jean Carroll.

9:21 Donald Trump was made to pay into the court, basically put up a money bond.

9:27 And an interesting tidbit here, E.

9:30 Jean Carroll didn't oppose these endless delays and appeals.

9:34 But you know what her lawyers did insist on?

9:37 They said, "That's fine,

9:39 as long as he continues to pay into the bond that he posted, which will,

9:45 you know, guarantee that the money judgment will be paid

9:49 at the end of all of these appeals." The E.

9:52 Jean Carroll's lawyer said, "We don't oppose,

9:54 as long as he also has to post all of the interest

9:58 that is accruing on that more than $80 million that a jury awarded E.

10:05 Jean Carroll.

10:06 So it looks like E.

10:07 Jean Carroll is perhaps very close

10:10 to finally having that money judgment satisfied.

10:14 All right.

10:14 Well, we will, of course, stay on top of this if and when we get some news about

10:18 whether or not the the Supreme Court is going to take this thing up.

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10:41 I'm Brian Tyler Cohen.

10:42 And I'm Glenn Kirschner.

10:43 You're watching the Legal Breakdown.

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