Almost lost amid the furor surrounding President Donald Trump’s widely condemned promotion Wednesday morning of anti-Muslim videos was the president’s suggestion that his current media nemesis, Joe Scarborough, was somehow involved in the tragic death of an intern in 2001. Though PolitiFact has ruled Trump’s tweet “pants on fire,” the urban myths surrounding the death of Scarborough intern Lori Klausutis in his Florida district office have never truly disappeared from the fever swamps, and the president seemed to give them new life by suggesting MSNBC fire Scarborough based on this “unsolved mystery.”
“Looks like I picked a good day to stop responding to Trump’s bizarre tweets,” Scarborough replied. “He is not well.”
Although Trump’s tweet, a pedestrian attack beneath the dignity of the office of the President, is disgusting in its own right, the unfortunate reality is that there is no viable legal action Scarborough can take against the president for libel or defamation for one simple reason: The president is immune.
The president’s immunity is based upon a statute that covers all federal employees. The Federal Employees Liability Reform and Tort Compensation Act of 1988—more commonly known as the Westfall Act—stipulates that federal employees retain absolute immunity from common-law tort claims arising out of acts they undertake in the course of their official duties. That immunity extends to both “negligent” and “wrongful” acts.
If a federal employee is sued for a common-law tort—such as libel—it’s up to the attorney general to determine whether the alleged act falls within the scope of the official’s employment. In practice, these scope-of-employment certifications are broadly issued to a host of activities in which federal employees may engage, and often are done so even if the activity is only tangentially related to the employee’s actual duties. If the attorney general issues the certification, the individual federal employee is removed from the lawsuit and the United States takes his or her place as the defendant. Under the Federal Tort Claims Act (which the Westfall Act amended), claims cannot be brought against the United States for libel or slander. Put simpler, if the attorney general’s certification stands, the lawsuit dies.
The sliver of good news here is that the attorney general’s certification is subject to challenge. The bad news is that the burden is on the person bringing the lawsuit to demonstrate that the federal employee’s actions did in fact exceed the scope of their employment.
Speaking from personal experience, I can attest to the fact it is exceedingly difficult to meet that burden, particularly in the context of political remarks made by constitutional officers such as the president or members of Congress. Two infamous cases addressing this problem involved controversial remarks made by since-deceased members of Congress, namely Reps. Cass Ballenger of North Carolina and John Murtha of Pennsylvania.
In both cases—the latter of which was litigated by the firm in which I serve as a partner—the members of Congress made what would otherwise likely be construed as libelous and defamatory statements. Ballenger described the Council on American-Islamic Relations as a “fund-raising arm for Hezbollah” and Murtha accused U.S. Marine Corps Staff Sergeant Frank D. Wuterich (and other Marines) of deliberately murdering innocent Iraqi civilians in the Haditha incident during Operation Iraqi Freedom. CAIR and Wuterich sued, and in both cases, the courts determined that speaking to the press fell within the scope of the congressmen’s authorized duties, and that, so long as the underlying conduct was motivated at least in part by a legitimate desire to discharge official duties, it was sufficient to warrant immunity.
The courts have afforded federal employees similar amounts of latitude to push back against critics of government policy. Civil litigation brought by Valerie Plame Wilson against certain Bush administration officials who had disseminated to the media her covert affiliation with the CIA ultimately failed after the D.C. Circuit concluded that the administration officials were within the scope of their duties to speak to the press for the purpose of defending administration policies. The fact that this action manifested itself in the form of disseminating Wilson’s covert status did not alter the analysis or the ultimate legal conclusion; vice presidential aide Scooter Libby ultimately was convicted by a federal jury for obstruction of justice, perjury and lying to the FBI—but he faced no civil penalty.
It seems crazy to think that suggesting a prominent media figure is a murderer would fall within the scope of the president’s official duties, but the precedent is clear: It would be almost impossible to win a libel lawsuit against him. This reality provides Trump with a significant amount of legal cover, as presumably he has been reassured by the White House Counsel’s Office. Indeed, it is difficult to envision a viable argument by which someone who is the target of the president’s Twitter rants—such as Scarborough—could successfully bring a claim that would puncture the president’s immunity.