Trump's Best Shot to Beat the Carroll $83M Verdict!

Added: 2026-05-11

[00:00:22]Bam. Welcome everybody. Welcome to this episode of the Brana Show. I am of course attorney Anna Branka and we are here to talk about that whack job, Eene Carroll. Remember Eugene Carol? She's the crazy broad that accused Trump in 2019 wrote a book accusing Trump of sexually assaulting her. She doesn't know when. Sometime in the in the 1990s in a Burgdoff Goodman dressing room.

[00:00:53]Can't remember if it was 1995 or 1996 when this billionaire sexually assaulted you, but she remembered when it was time to publish your book. Of course, Trump denied these accusations, called her a liar, and she sued him for defamation in in the politically rigged uh second circuit federal courts where, of course, it's overwhelmingly progressive fascist jurists and judges and jurors. And of course, Trump got railroaded into an $83.3 million damages award.

[00:01:34]And there's a lot of problems with this civil litigation against Trump, as there is with all the litigation against Trump on simple matters of fact. But that's not what I want to focus on here today.

[00:01:45]I want to focus on a disscent that just came out of the Second Circuit Court of Appeals. Because of course after the civil verdict against Trump, the $83.3 million in damages, he appealed he appealed that judgment for various travesties of injustice that occurred during the litigation.

[00:02:06]And the second circuit court of appeals denied him, affirmed the lower court judgments, and then he asked for a rehearing on bonk. I want the entire second circuit to rehear my arguments.

[00:02:19]And they had a vote and they denied him a rehearing in bond. Now, what I'd like to cover today is a disscent from that denial. Three judges who thought Trump was entitled to a retrial on all of this because of the injustices done against them. And I want to share this descent because otherwise I don't think anybody will ever hear anything about it. If you don't hear it from me, you won't hear it. it'll get zero coverage. But I've read it and it details not just the the fecklessness of Eene Carol and the fecklessness of of the trial judges involved in these cases, but it it lays out in plain English all of the legal injustices by judges who should know better.

[00:03:07]It's it's a it's a patent illustration of just how Trump was not just factually railroaded, but railroaded in law by these judges.

[00:03:20]And because it's done in such clear English, and I don't think anyone would see it if I didn't cover it, I'm going to cover it with all of you today. In fact, I'm going to cover it with all of you today and tomorrow because it is 54 pages long and that's a little long for a single show. So, we'll do kind of a part one, part two. Um, I'll spend about an hour with you today covering the first roughly half of this amazingly written descent and then we'll cover the second half tomorrow before I leave Vegas. I jump on the bike and start heading home from my Vegas trip tomorrow morning. So, that's where we are. Let me take a quick look at comments. Is there anything I need to jump on right away?

[00:03:59]Are we working in uh let's see Rumble?

[00:04:06]Everything should be fine.

[00:04:10]All right. So, let me go ahead and pull this up. Oh, here we got a super chat.

[00:04:14]Of course, I can't read it.

[00:04:17]My travel setup everything is much smaller than uh than at home. So, what's up, my friend? Jim tells you, Mr. Branka, please wish Mrs. Brana a happy Mother's Day. I certainly will. I certainly have already today. Uh so glad you are covering this stuff. You're doing great work. Thank you, man. And check out Jim's show. Jim tells you he has his own show on YouTube. Jim does uh good work very helpfully. Sends me uh show topics uh to consider just about every day. So he's a great guy. He deserves your support support.

[00:04:53]Let me pull this down. Now, these this is a um disscent on the denial of onbank and the descent's arguing that Trump was railroaded. Uh but it doesn't go through the facts of the case because on appeal they're not really reviewing the facts.

[00:05:08]That's something that's done at trial.

[00:05:10]They're reviewing the law. So, it's focused on the the legal railroading.

[00:05:15]Not not not that the railroading was legal, but it was a railroading the the legal aspects of just how egregiously Trump was railroaded in all this.

[00:05:27]And these three judges uh so Judge Manashi wrote this descent. Uh but he's joined by two other judges, Park and Livingston. Manashi and Park are Trump appointees. Livingston was a W. Bush appointee.

[00:05:42]It's just devastating how Manashi lays all this out. How how our federal judges, our unelected black robe, tyrannical inferior federal district trial court judges participated in this extrajudicial railroading of our democratically elected article 2 President Trump.

[00:06:02]Manashi writes, "In this case, the panel issued two separate decisions that are each the subject of a petition for hearing on bon." So there were actually two trials here. There was a 2019 trial in which Trump was first accused and first denied it. That trial started in state court and was removed to federal court. And then there was a second 2022 trial in which Trump again denied the accusations and they became the basis for yet more defamation claims by Eugene Carol against the president. Both of those verdicts against Trump were appealed to the second circuit court of appeals from district trial court. uh both both of them have were denied. Uh the lower court affirmed and both of them became a basis for asking not just a three judge panel of the second circuit but an onbank a larger panel of second circuit court of appeals judges to reconsider these insane legal conclusions.

[00:07:00]So in this case, the panel below, that would be the three judge panel, issued two separate decisions that are each the subject of a petition for a reharing on bon which was denied. The first decision rejected the motion of the United States to substitute the United States government as the defendant after the attorney general of the United States certified that the president was acting within the scope of his office or employment at the time the incident of the incident out of which the claim arose at the time of the Trump's allegedly def defamatory statements.

[00:07:37]The United States has petitioned for a rehearing of that decision. The second decision affirmed the judgment, awarding 83.3 million in compensatory and punitive damages and denying the president's motion for a new trial or judgment as a matter of law. President Trump has petitioned for rehearing of that decision as well. And the United States as a government has filed a brief in support of that petition. By the way, both of these have now been denied.

[00:08:05]That's what this is all about. And Trump is now saying he'll be appealing all this to the US Supreme Court seeking cersiary.

[00:08:14]Judge Manashi writes, I would grant both petitions for onbank reharing because both underlying decisions were erroneous.

[00:08:22]The panel opinion denying the motion for substitution putting the United States government in place of Trump as the defendant made three primary errors.

[00:08:33]First, the panel erroneously determined that Attorney General Bondi had waved the right to make a Westfall Act certification because Attorney General Garland had previously declined to make that certification. So, Manashi explains later what's happening here, but let me explain it to you all now so you're not lost.

[00:08:54]There's a statute created by Congress, the Westfall Act. And that statute says that when an employee, someone in the employee of the federal government is civily sued while engaged in the duties of their employment for the federal government, the federal government has the right to substitute itself as the defendant to protect that federal employee. So, if someone's employed by the federal government as a post office worker, they drive a post office truck uh and they run somebody over and it's claimed that the the running over was negligence and they're civily sued, that employee can be protected, personally protected from civil liability because the United States will step in as the as the culpable defendant. Uh it doesn't mean the person who got run over can't sue that they're just suing the US government instead of the federal employee. And this serves the government's interest of protecting people in federal employee from the risk of civil litigation.

[00:09:58]That's called a Westfall Act certification. For that to happen, the attorney general would certify, yes, this person was in the employee of the federal government at the time the alleged um tort uh occurred. Well, Attorney General Bar, who was President Trump's attorney general in his first term when this stuff was happening, had certified Trump as being in the employee of the federal government when he committed the alleged tort, the alleged defamatory statements.

[00:10:27]Then, of course, President Joe Autoendment got elected and his attorney, General Garland said, "Never mind. We want to do away with that certification. We don't want the United States to stand in as a defendant for Trump. We want Trump to be the defendant and be personally liable.

[00:10:44]Surprise, surprise. A new administration, a hostile administration came in and decided to change their certification. And that was allowed.

[00:10:52]That was allowed by the judicial system to happen. But then when Trump gets reelected to a second term and has a new attorney general, Pam Bondi, and Pam Bondi reertifies him under the Westfall Act, so the US government can stand in as the defendant. Then the judges say, "Sorry, it's too late. You should have done that earlier. You waved that ability to certify." We're going to go into this in more detail, but I I felt I had to provide you with that context now so you know what's going on.

[00:11:27]First, the panel erroneously determined that Attorney General Pam Bondi had waved the right to make that Westfall Act certification because Attorney General Garland of the Biden administration had previously declined to certify even though one Garland himself had reversed the prior certification by Trump's first term attorney general Bar and the Westfall Act contains no time limit. for making a certification and no attorney general was ever a party to the case and subject to any waiver rules.

[00:12:04]Second, the panel misread the Westfall Act to prohibit substitution following a trial when a case begins in state court even though everyone agrees that the act allows substitution following trial when a case begins in federal court. There's no justification for this differential treatment.

[00:12:24]Third, the panel failed to correct the decision of the district trial court that the president does not act within the scope of his office, so not in federal employee. When he makes public remarks to the press from the White House, that falls outside Trump's federal employee somehow.

[00:12:46]The panel opinion, the three judge panel opinion affirming the judgment, the 83.3 million in damages, then made three additional errors. First, the panel refused to address the effect of presidential immunity under the Supreme Court decision of Trump v. United States, which Scotus issued in 2024.

[00:13:07]It did so on the doubly erroneous premise that President Trump waved any immunity defense and that Trump v. US simply reaffirmed long-standing principles. So, nothing prevented the president from raising the exact same arguments even before that Supreme Court decision was decided. So, what's happening here is if you have an argument to make available to you in the law and you fail to make it in a timely manner and then you try to make it later, they can say, "Sorry, you wave that." You're not allowed to hold arguments in your back pocket in case you lose. you have to put all your good arguments up front on the table so they can be litigated at the same time.

[00:13:46]But here the law changed. The Supreme Court issued a brand new decision on the scope of presidential immunity. So Trump's position is and the position of this descent is he didn't know he had those arguments to make before Trump vus before the Scotas immunity decision. So the fact that he didn't make them before that's normal. the law didn't change yet. And then Scotas' new decision changed the law. Now, the majority here that wants to deny Trump justice, they're saying, "Well, it didn't change it very much. It just it just reaffirmed long-standing principles. It's a lie on its face, as we'll see in more detail."

[00:14:30]Manashi continues, "That holding is not credible. Whatever one thinks about the merits of that Supreme Court decision, Trump v. United States. Everyone agrees that it represents a significant legal development.

[00:14:44]Second, the three judge panel wrongly held that President Trump was properly denied a jury trial. The panel reasoned that his liability for defamation for statements made in 2019 was predetermined by a trial about different statements made in 2022.

[00:15:02]But the jury verdict about a purported defamation in 2022 did not resolve the question of whether he was liable for different statements made under different circumstances in 2019.

[00:15:16]Third, the three judge panel upheld a damages award that included unauthorized damages, duplicative compensatory damages, and a grossly excessive monetary figure for a defamation claim.

[00:15:31]I would rehear the case on bon to bring our case law about the scope of presidential duties and immunity into conformity with the decisions of the Supreme Court and to resolve these questions of exceptional importance in line with the constitutional separation of powers and normal judicial practice as opposed to the travesty of injustice that occurred in these cases.

[00:15:57]In my view, the same rules should apply equally to all defendants.

[00:16:03]That's him, the same judge quoting himself dissenting from the other re denial of rehearing on Bach. All right, let's talk more about the the Westfall Act. This substituting the United States as the defendant in civil litigation in place of a defendant who was in federal employee when he committed the alleged tort.

[00:16:23]Congress enacted the Westfall Act to protect federal employees from personal liability for common law tors committed within the scope of their employment.

[00:16:33]The act authorizes the attorney general to certify that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the tort claim, the civil claim arose.

[00:16:48]Upon such certification, two things will happen. First, the action will be removed to federal court if it was commenced in state court and a trial has not yet occurred. So, this would be the removal step. Second, the action shall be deemed an action against the United States and the United States shall be substituted as the party defendant. So, that's the substitution step. So, two steps with the Westfall Act. Once you're certified as being in federal employee, it's removed from state court to federal court and the United States is substituted for the actual defendant who was in federal employee.

[00:17:30]The paradigmatic case of substitution under the Westfall Act are those in which a driver conducting government business allegedly injures someone in a car accident or in which a doctor employed by the government injures a patient through alleged malpractice.

[00:17:46]The attorney general will certify that the driver or the doctor was acting within the scope of his government employment when driving or when treating patients. They're not certifying that the torsious act, the accident or the malpractice was an official act and then the tort will proceed against the United States as defendant.

[00:18:06]Ordinarily, scope of employment certifications occasion no contest.

[00:18:11]There's no complaint about it. It's perfectly normal.

[00:18:15]Manashi continues, it's a unique circumstance when this statutory framework applies to the president of the United States. The president may be an employee of the government, but he he also alone composes a branch of government, the executive branch. This circumstance should make it easier to determine that the president was acting within the scope of his office when the purportedly torturous conduct occurred. Now, keep in mind what the torturous conduct is here.

[00:18:47]It's not the sexual assault. It's the defamation in denying the the sexual assault. That's the the words spoken.

[00:18:57]She's crazy. She's a liar is essentially what he said. Uh were the defamation were the torches act here. And and he said those words from the White House talking to the press as president.

[00:19:12]So the president being a branch of government in his own purpose should make it easier to determine that the president was acting within the scope of his office when the purportedly torturous conduct occurred. The president compared to other government employees has an especially broad scope of office. There is not always a clear line between its personal and official affairs because like anyone else, unlike anyone else, the president is a branch of government and the Constitution vests in him sweeping powers and duties. In this case, the president made the allegedly defamatory statements when he issued a press release and responded to press inquiries from the White House.

[00:19:55]Making public statements to the press is part of the president's job. When the president engages in public communications, he discharges official duties, official responsibilities, and therefore acts within the scope of his office. That principle is wellestablished with respect to other elected officials compared to the public communications of a congressman, for example. And they give an example here about a congressman um was was deemed to have acted within the scope of his employment when he discussed his marital status at his office during regular business hours in response to a reporter's inquiry. So he was had a bad marriage situation. He said some things that his wife or ex-wife didn't like. She tried to sue him for defamation. They said, "No, a congressman who's if if he's being made to look bad because of a bad divorce proceeding, he's allowed to talk about it." And and what you're allowed to do, by the way, is you're allowed to engage in conduct that might otherwise be defamation. So, if I were just pick one of you and call you a liar, announce that you're a liar, that would be defamatory if it wasn't true. But you're allowed to say someone's a liar when they're making false claims about you.

[00:21:13]you're allowed to defend yourself against the false allegations, which of course is what Trump was doing compared to the public communications of a congressman. The example we just looked at, the president's public comments present an easier case because the Supreme Court has expressly said that public communications fall within the scope of his office.

[00:21:34]The decisions below by the three judge panels here, however, suggested that the president of the United States has a much narrower scope of office than a government driver or a doctor.

[00:21:48]The district trial court rejected attorney general bar certification on the ground that the question of whether the government employees are acting within the scope of their employment must be resolved under the respondiat superior doctrine of the state or the federal district in which the purportedly torturous conduct occurred.

[00:22:07]So, respondent um superior is a doctrine that says uh if you're working for an employer, you're a truck driver for a company and you run somebody over and it's negligence, it's not just you who's liable for the civil harm. It's your employer who's liable for your civil harm. So, the superior is called to respond for the negligence of their employees committed in the course of their their duties.

[00:22:38]So you see the dynamic there. You have an employee and you have an employer who's sucked in, right, to be responsible.

[00:22:45]The district trial court explained that the respondent superior doctrines of New York and the District of Columbia provide that respond or superior liability does not apply unless the employer exercises or has the ability to exercise control over the employees relevant actions. But because no one directed or controlled President Trump because he's president when he commented on the plaintiff's accusations, the president was not acting, the trial court said within the scope of his employment when he made those statements and the attorney general certification under the Westfall Act was in error. That analysis was incorrect.

[00:23:29]It would meant it would mean that the president acts within the scope of his office only to the extent he carries out the orders of someone else an employer.

[00:23:38]In our constitutional system, however, the president directs executive officers rather than the other way around.

[00:23:48]And the head of an organization certainly can act within the scope of his employment. Putting aside for the moment how bizarre it is to determine the scope of the presidential office by reference to state employment law rather than to the US Constitution. The analysis of the unelected black rope tyrannical inferior federal district trial court judge did not make sense even on its own terms. It rendered the president's actions within the scope of his office a null set. Nothing would fit within that set. That was clearly wrong.

[00:24:24]The president is the executive official with the broadest scope of office possible in our constitutional order.

[00:24:35]Our court then the second circuit court of appeals then compounded the error of the underlying district trial court judge. We said the scope of the office of the president of the United States is governed by the District of Colombia's respondent superior law, but concluded that the district's law regarding vicarious liability is sufficiently unclear that we're unable to predict with any confidence how the district's highest court would resolve the issue if it was at the District of Columbia level, right? Like a state level as opposed to the federal level. So the second circuit asked a municipal, a city, DC court judge to answer the following certified question. Under the laws of the District of Columbia were the allegedly lielist public statements made during his term of office by the president of the United States denying allegations by EJ Carroll of misconduct with events with regards to events prior to Trump being president within the scope of his employment as president of the United States. In other words, our federal court asked whether under the local laws of DC, the president of the United States had acted within the scope of his employment.

[00:25:50]That local court answered the question only by affirming that the DC district of Columbia generally adheres to section 228 of the restatement of second of agency's traditional view of the scope of employment inquiry of respondent superior.

[00:26:07]And for example, the restatement provides that an employer is liable for an employes's torchious conduct in circumstances where the conduct is of the kind that the person is employed to perform.

[00:26:18]But the law of the District of Columbia recognizes that many employees have informal duties that are as integral to their employment as their formal responsibilities and therefore are just as sound a basis for applying responding superior liability.

[00:26:35]This purported clarification did not clarify very much except perhaps to make it more obvious that the president was acting within the scope of his office when responding to reporters at the White House.

[00:26:49]Nevertheless, according to the three judge panel, this trivial clarification from a local court in the District of Columbia provided a new legal and factual record that allowed Biden Attorney General Garland to reverse the certification of of Trump Attorney General Bar.

[00:27:11]Yet the panel further held that attorney general Bondi was not allowed to reconsider the certification decision of Garland.

[00:27:20]The government determined that certification was not appropriate under the respondent superior stat standard as clarified by the DC circuit court of appeals and explicitly so advised the trial court. The government cannot now change course on appeal. So Garland, Biden's AG Garland reversed Trump AG bar and that was fine. But now that Garland had done that, Trump AG Bondi was prohibited from reversing Garland. The fix was in. And they're pretending that the United States changing from Republican attorney general to Democrat attorney general to Republican attorney general.

[00:28:00]that that's just the same United States government making a legally consistent and coherent decision. Obviously, it's not. Biden AG Garland hated Trump.

[00:28:14]The government has waved its right to bring this belated motion. Just insane.

[00:28:20]The three judge panel made several errors by forbidding Attorney General Bondi from making a motion under the Westfall Act to substitute the United States for Trump.

[00:28:30]First, the waiver argument made no sense. The panel opinion, the three judge panel said that our law of waiver does not permit a party to withdraw an objection in the district trial court and then attempt to reassert that objection on appeal with the benefit of hindsight. You can't keep these arguments in your back pocket the way it normally works. But the United States has never been a party to this litigation. And the attorney general certification under the Westfall Act is not an objection, pleading or argument of a litigant.

[00:29:06]Trump was trying to get the United States substituted, but it never went into effect under bar or Garland. So he the United States government was never a party to the case.

[00:29:17]Manashi continues, "Congress enacted a statute that authorizes the attorney general to make a scope of employment certification for substitution purposes, and the statute does not prohibit the attorney general or a successive attorney general from making a new certification based on a revised assessment of the law or the facts.

[00:29:39]Nothing in the Westfall Act contemplates anything like the embellishment the Second Circuit has adopted. It is long since settled that a reviewing court is generally not free to impose additional judgemade procedural requirements on agencies that Congress has not prescribed and the constitution does not compel.

[00:30:03]At the same time, the panel opinion said that attorney general Garland, unlike Attorney General Bondi, so Biden AG Garland, unlike Trump AG Bondi, was entitled to conclude that the prior certification by Trump AG Bar and motion to substitute had been overtaken by events given the DC Court of Appeals clarification of the standard for responding in superior liability under DC law such that the attorney general Garland should therefore be given the opportunity to decide a new whether to descertify that his political enemy Trump was acting within the scope of his office as president at the time of the incidents out of which the plaintiff's claim arose the alleged defamation subsequent to Attorney General Garland's Biden Attorney General Garland's withdrawal of Trump AG bar certification The United States held an election in which the government's assessment of this sort of litigation was a matter of public debate.

[00:31:10]If the clarification of the DC Court of Appeals justified a reconsideration of the government's position so that Garland could reverse bar, then so did the election. A changed view of the government may be related to the election of a new president of a different political party because a change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs.

[00:31:42]The attorney general was entitled to evaluate priorities in light of the philosophy of the new administration.

[00:31:49]There was no principal justification for holding that Trump Attorney General Bar's certification decision could be revisited by Biden Attorney General Garland, but that Biden Attorney General Garland certification decision could not be revisited by Trump Attorney General Bondi.

[00:32:08]The panel opinion indicated that after Biden Attorney General Garland's withdrawal of the bar certification, President Trump himself could have petitioned for the district trial court to find and certify that the employee Trump was acting within the scope of his office or employment. The panel said that by declining to seek such relief, having the the judge, the district trial court judge who was railroading him do the certification that he was a federal employee himself. They say he by declining to seek such relief, Trump waved his right to now bring this motion. But in fact, Trump did seek such relief.

[00:32:47]On June 9th, 2023, Attorney General Garland indicated the prior certification had been quote unquote overtaken by events. On June 27th, President Trump raised as an affirmative defense at trial that he made the challenge statements within the scope of his employment and is therefore immune from this lawsuit under the Westfall Act. Regardless whether the employee has sought certification, cannot operate as a waiver of the authority of the attorney general to certify or not as they think best.

[00:33:21]Let me check out. Got a super chat here.

[00:33:23]Let's see.

[00:33:25]Cardinal of Flanigan, member for 11 months. Wow. Says if Trump was not president or if he had not run, then Carol would not even have made the allegation. It's tied to the office.

[00:33:37]Quite possibly.

[00:33:40]I think that's a reasonable inference.

[00:33:42]She was selling a book. Right.

[00:33:46]Second, the panel opinion misinterpreted the Westfall Act to prohibit a substitution based on Attorney General Bondi certification.

[00:33:54]According to the three judge panel opinion, when a case begins in federal court, the attorney general may move for substitution at any time, including after trial. When a case begins in state court, however, according to the panel, the attorney general's motion for substitution must be made before trial, even if, as in this case, the ultimate trial occurred in federal court. So remember, Carol first sued Trump in state court and it was removed to federal court.

[00:34:25]That differential treatment of substitution motions by the attorney general is arbitrary and lacks a basis in the statute of the Westfall Act.

[00:34:35]Pursuant to the Westfall Act, there is no time limitation on a motion for substitution when the case begins in federal court. The statute provides that quote upon certification by the attorney general that the defendant employee was acting within the scope of his office or employment at the time in the incident out of which the claim arose, any civil action or proceeding commenced upon that claim in a US district court shall be deemed an action against the United States itself as a government under the provisions of this title and the United States shall be substituted as the party defendant. Close quote. That's the Westfall Act. Everyone agrees, Judge Manashi writes that attorney the attorney general may make a certification and a substitution may occur even after a trial has concluded when the case begins in a state court.

[00:35:27]However, the case may be removed to federal court only until the trial has begun in state court. Now, remember, there's two steps here we're talking about. One is removal from state court to federal court. The other is substitution of the United States for the actual defendant. These are two different things. These are two different things. Uh and it kind of makes sense that you would want to limit the removal from state to federal court.

[00:35:55]You may want to limit the ability to do that until the point the trial starts in state court. Once the trial started in state court, you'll have wasted all those resources if midtrial you move it to federal court. So they reasonably say, "Hey, when it comes to the removal authority under the Westfall Act, you need to do that before the trial actually begins in state court.

[00:36:15]Otherwise, it's it's it expires." But not the substitution. There's no similar limit, and nor should there be for the substitution. The whole point of the substitution is to protect the federal employee defendant from civil liability.

[00:36:31]Why would there be a less compelling reason to do that after the trial starts than before the trial starts? It doesn't make any difference when the case begins at a state court.

[00:36:41]However, the case may be removed to federal court only until the trial has begun in state court.

[00:36:49]It makes sense. Judge Manashi writes that the removal would need to occur before the trial starts in state court.

[00:36:56]Otherwise, a federal court of appeals would be reviewing state court trial proceedings. But the same logic does not apply to substitution. Substituting the US for the defendant. And indeed, Congress provided for substitution in a separate sentence that's not modified by the words at any time before trial with language that parallels the provision for substitution. Congress does not use the same words to accomplish the opposite objective. There's no reason to believe that the substitution language in the two provisions does not have the same scope. The straightforward way to read the statute is when the attorney general makes a certification, the action shall be removed to federal court any time before trial and the United States shall be substituted as the defendant. Period. The statute does not say as the three judge panel opinion held that any certification must be made before trial.

[00:37:56]Congress spoke in discrete sentences.

[00:37:59]First of removal, then of substitution.

[00:38:02]These are two different things.

[00:38:06]Removal has to happen before the state trial starts, but not substitution of the defendant. The interpretation of the panel opinion is is at odds with not only the text of the statute, but the structure of the statute. To foreclose needless shuttling of a case from one court to another, Congress made certification conclusive for purposes of removal. That means the statute authorizes two different steps. Removal, which is automatic and conclusive, and substitution, which occasions further judicial review. The three judge panel itself emphasized that certification is conclusive, cannot be questioned by the courts for purposes of the removal to federal court. But the question of substitution is subject to judicial review given this two-step process.

[00:38:54]There's no reason to expect removal and substitution to occur simultaneously or even to result from the same certification decision. This very case was removed to federal court where the trial actually occurred because attorney general bar certification was conclusive for the purpose of removal. But the United States was not substituted as the defendant because Attorney General Garland later decided not to certify for purposes of substitution. Two different things, removal and substitution. The panel insisted that because removal must be accomplished before trial, it follows that the certification must be made before trial too. But that conclusion does not follow because as this case illustrates, the removal and the substitution may occur at different times and be governed by different certifications.

[00:39:48]The three judge panel insisted that its counterintuitive reading found support in the broader role and purpose of the Westfall Act, which it defined narrowly as supplanting the jury in covered cases because FTCA cases are subject to bench trials. Logically, it said the substitution must occur prior to trial because supplanting the jury as factfinder. So in a bench trial, the judge is the finder of fact. There is no There is no jury.

[00:40:20]Supplanting the jury as factfinder has little utility than case like this one that has already been tried to a jury.

[00:40:27]But in the enacted statement of purpose for the act, Congress said the purpose of the Westfall Act was to protect federal employees from personal liability for common law tors committed within the scope of their employment.

[00:40:41]based on the congressional finding that the prospect of such liability will seriously undermine the morale and well-being of federal employees, impeding the ability of agencies to carry out their missions and diminish the vitality of the Federal TOR Claims Act, FTCA, as the proper remedy for federal employee tors. The need to protect federal employees does not disappear and might even become more urgent once a trial has already occurred. That's why the statute does not require that a motion for substitution be made only before trial.

[00:41:18]It would undermine the congressional purpose of the plaintiff's mere election to file a complaint in state rather than federal court would restrict the ability of the United States to provide a defense.

[00:41:30]The three judge panel opinion also created a circuit split. The DC circuit has held that when a case is timely removed to federal court, a new case is commenced and the district trial court that follows the United States that allows United States to substitute itself for the federal employee defendant.

[00:41:49]The DC circuit explained that while any case removed from a state court necessarily originated outside of the district court, the federal district court, its removal creates a new federal civil case with a new procedural beginning and end. According to the applicable rules of civil procedure, the federal action commenced in the federal district court when removal from state court took effect and the complaint was received by the federal clerk.

[00:42:18]everything. The clocks all start a new under that rule. The removal would apply to this removed case and there would indisputable indisputably be no time limitation on the ability of the US to move for substitution.

[00:42:37]It is unsustainable for the availability of Westfall Act substitution to depend on whether the case ends up in the DC circuit or the second circuit.

[00:42:48]The three judge panel here might quibble over the details of the decisions of the DC circuit and other circuits applying to Westfall Act. But this case would have come out this case either would have come out differently in the DC circuit or would have come out differently in the other circuits if President Trump had simply removed the case on the basis of diversity before the United States moved for substitution.

[00:43:13]So that's another basis for federal court jurisdiction. There's different ways a federal court judge could get a case. Removal from state court is one way by by statutory authorization, which is what the Westfall Act does. Another way someone can get into federal court is if it's something involving a federal law or if there's diversity between the plaintiff and the defendant. They come from different states. That's another way to get into federal court as opposed to state court.

[00:43:41]If the circuit courts would reach different outcomes on the same facts, there is a circuit split. I would rehear this case on bong to reach a result that is consistent with rather than contrary to the interpretation of the Westfall Act that prevails in other circuits.

[00:44:00]Third, the panel opinion, the three judge panel below, invoked these procedural and statutory obstacles to avoid facing the fact that the certifications of Trump Attorney General Bar and Trump Attorney General Bondi were correct.

[00:44:17]When a court considers a Westfall Act certification that a driver or doctor was acting within the scope of federal employment, the question is whether the driver was driving on government business or the doctor was treating patients as part of his federal employee. It's not whether the government employment specifically required him to hit a pedestrian or to injure a patient. As the Westfall Act puts it, the certification is that the defendant employee was acting within the scope of his office or employment at the time in the incident out of which the claim erodess. The overall conduct, not the allegedly torturous incident itself, must be within the scope of the office or employment. So, no one's saying that defamation is within the scope of the president. They're saying that if speaking to the press is within the scope of the president, that's within his official duties.

[00:45:12]As a result, even assuming that the conventional framework applicable to drivers and doctors applies to the president of the United States, the question here is whether it is within the scope of the president's office to issue press release releases or to respond to press inquiries. That's not a difficult question. It is incontestable that the presidency comes with the power to use the bully pulpit.

[00:45:41]When the president engages in public communications, he is discharging official responsibilities and acting within the scope of his office. Citing here to the Supreme Court decision of Trump, that's the presidential immunity decision.

[00:45:57]The DC circuit has held that speaking to the press during regular work hours in response to a reporter's inquiry falls within the scope of a congressman's authorized duties. For that reason, even a statement the congressman made during the conversation that elaborated on the reasons why he and his wife separated fell within the scope of his office. for a defamation claim based on such a remark, the proper defendant under the Westfall Act is the United States government, not the individual employed.

[00:46:29]In this case, the district trial court rejected the notion that the president's remarks to the press could fall within the scope of his office because the president does not have an employer at whose behest he makes the remarks. But the DC Kirk circuit has no problem concluding that the congressman's remarks even about his personal affairs were actuated even in part to serve the master because even a partial desire to serve the master is sufficient. And the congressman wanted to maintain the continued trust and respect of his constituents in order to preserve his ability to carry out his legislative responsibilities.

[00:47:10]Why wouldn't that all apply to the president? The DC circuit recognized that the congressman's conduct was motivated, at least in part, by a legitimate desire to discharge his duty as a congressman. President Trump explicitly explained that he made the remarks giving rise to this case for similar reasons. I just wanted to defend myself, my family, and frankly the presidency. That was by from his deposition. Probably the fifth circuit court of appeals has also decided that a congressman's statements including the alleged defamatory remarks and even assuming such remarks are defamatory which remain in the context of an interview addressing matters of public concern clearly fell within the course and scope of his position as a member of Congress.

[00:48:00]The Sixth Circuit Court of Appeals has decided that legislator's social media post describing high school students as exemplifying blatant hate and a lack of common decency were calculated to serve the interest of the defendant's constituents by informing them of the defendant's views. And the third circuit is held that commissioners of the United States semiquincentennial commission acted within the scope of their employment when allegedly engaging in a campaign of liel, slandered, and smearing that involve statements made in interactions with the press. Other courts have reached similar conclusions.

[00:48:39]The the decision in this case regarding the president of the United States stands on the other side of all those arguments.

[00:48:49]The attorney general certification constitutes primma facia evidence that the employee was acting within the scope of his employment. And a plaintiff challenging the government's scope of employment certification bears the burden of coming forward with specific facts rebutting the certification. The plaintiff in this case cannot meet that burden.

[00:49:11]It is strange to think that the scope of the office of the president of the United States should be decided by reference to state employment law and the Supreme Court may want to consider whether that is how the Westfall Act applies to the president.

[00:49:28]Let's take a look at this footnote here.

[00:49:30]17 quoting Trump v. United States, the Supreme Court's recent presidential immunity statute. So this is the Supreme Court majority speaking here. Unlike anyone else, the president is a branch of government and the Constitution vests him with sweeping powers and duties. And another Supreme Court decision involving Nixon. Under the Constitutional Ls of the United States, the president has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases, it would be difficult to determine which of the president's innumerable functions encompassed a particular action. Another Supreme Court case from 2020. The Constitution guarantees the entire independence of the general government from any control by the respective states. So how could they be bound by state tort law? As we have often repeated, states have no power to impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress.

[00:50:31]It follows that states also lack the power to impede the president's execution of those laws.

[00:50:41]So the Supreme Court may want to consider whether that is how the Westfall Act applies to the president that state employment law should apply.

[00:50:49]But even under the framework that applies to other government employees, the motion of the United States for substitution should have been granted. I would hear the case on bonk and grant the motion for substitution.

[00:51:07]Let me see.

[00:51:11]I think let me take a quick look here. See if I want to pause here or cover this next section.

[00:51:37]I think that's where I wanted to pause because I think it goes on for quite some time.

[00:51:54]Yeah. Yeah, that is where I want to pause. All right.

[00:52:00]Okay, guys. That's what I wanted to cover with all of you today. We're going to cover the the remainder of this descent uh tomorrow morning. I'll cover it in a show before I leave Las Vegas.

[00:52:11]Leaving Las Vegas on my motorcycle heading up into southern Utah. Uh if you'd like to follow my journey on the bike, follow me on X at the Brana Show and I post photos there. um various stops I take along the way at the various national parks and was somebody blocked and the chain have to block somebody in the chat was somebody behaving poorly is that what was happening and um so we'll complete the descent there um as a part two travesty of injustice part two more great stuff from judge manashi on the second circuit and again I'm I'm covering all this because I don't think it's going to pop up on anybody's radar screen unless I cover it. U but it's it's really important because it exposes the fecklessness of how the judicial system has been railroading Trump. Not just on the on the facts of this case, which are incredibly weak, but on the law that's being applied by the these TDS deranged judges just to get Trump.

[00:53:14]Just to get Trump. By the way, the $83.3 million award has not yet been paid out.

[00:53:19]It's paused pending all this litigation, but Trump had to put up a 90 million plus bond which covers the award and interest on the award uh while all this pending litigation is being resolved.

[00:53:34]Otherwise, he just would have he wouldn't have been allowed to appeal unless he put up 100 million over this crazy broads accusations.

[00:53:41]So, I'm going to wrap up there. I'll be back again tomorrow. I don't know exactly what time. It'll be pretty early though because I have to do it. I want to get out of Vegas before the temperature hits 100° Fahrenheit. Uh so it'll be an early morning show. I'll post uh as soon as I have something to to schedule. Um and uh and I look forward to seeing you all there. If you don't watch the live stream, of course, you can always catch the playback version until we meet up again. Well, there's a couple super chats just came in. All right. Remember for 11 months, happy Mother's Day.

[00:54:11]Thanks for the Sunday show, Andrew.

[00:54:13]Godspeed. Uh yeah, I'm happy to do it.

[00:54:16]Happy Mother's Day to all you all you mothers.

[00:54:21]You mothers out there. And American dreamer member for one month. Appreciate you. Safe travels. Thank you. Thank you.

[00:54:27]I appreciate I appreciate that. Um there's some possibility maybe I'll do the show in the evening tomorrow. um you know, subscribe, subscribe, subscribe to the uh YouTube channel and I'll I'll post uh I'll put a post up there in the community section uh letting you know what I ultimately decide. Maybe I'll leave real early Las Vegas and get to get to Utah early and do an afternoon show where I cover in the second half of this. I'll have to play it by ear when I get up. But that might be the smarter play to get out of Vegas before the temperature explodes. All right, folks.

[00:55:02]Until then, until we do meet up again one way or the other, I remain attorney Andrew Brana for the Brana Show.

[00:55:12]Stay safe.