In Light Of The Chief Justice’s Latest Whinge

The Justice Department will ask the Supreme Court to allow it to step in on President Donald Trump’s appeal of the $83.3 million jury verdict in a defamation lawsuit brought by the writer E. Jean Carroll — a move that would doom Carroll’s case. https://t.co/wq5EiRVhNU

— erica orden (@eorden) May 6, 2026

Maybe we should keep an eye on this:

In a Tuesday filing, Assistant U.S. Attorney General Brett Shumate said the government would seek to use the Westfall Act to swap Trump for the U.S. as the defendant in the lawsuit. That would require dismissal of the case because the federal government can’t be sued for defamation. A panel of appeals court judges previously denied the U.S.’s effort to insert itself as the defendant.

The act gives federal employees immunity from some civil damages when they are found to have been acting within the scope of their employment. While Trump was president when he made the comments at issue in Carroll’s lawsuit, it would be highly unusual for the government to intervene on the president’s behalf at this stage, post trial and verdict.

The Justice Department’s filing comes as Trump is seeking to avoid paying the judgment while the Supreme Court decides whether to review the case — an effort in which he is virtually certain to succeed because Carroll doesn’t oppose the pause in payment as long as he increases the bond to account for interest. Last week, the 2nd Circuit Court of Appeals denied Trump’s request to reconsider a panel’s ruling upholding the defamation verdict.

This is, IOW, the ultimate Hail Mary. And how unusual would it be to allow this motion?

A spokesperson for Carroll’s lawyer declined to comment on the Justice Department’s Tuesday filing, but noted the 2nd Circuit said last year in rejecting the government’s Westfall argument that “both Trump and the government waived any right to now move for substitution” by failing to request it when the case was originally sent back to the district court.

I don’t know the law on the application of the Westfall Act,  but the decision of the Second Circuit means it’s a use it or lose it defense, and Trump didn’t use it at the right time. So I don’t expect the Sinister Six to give Trump a “King’s ‘X’” on this.  But: never say “never again.”