The Westfall Act lets the attorney general certify that a federal employee sued for something done on the job was acting within the scope of employment. The United States then replaces the employee as the defendant, and for claims such as defamation that ends the case, because federal employees are shielded from them. In E. Jean Carroll's defamation case over statements Trump made as president in 2019, Attorney General William Barr certified in September 2020 that the statements fell within the scope of the presidency; the Justice Department under Merrick Garland withdrew that certification in 2023, which the department now calls an “extremely rare step,” and the case went to trial. A jury awarded Carroll $83.3 million in 2024 (see E. Jean Carroll Verdicts).
Trump's second-term Justice Department has tried to undo that. In April 2025 it moved in the Second Circuit to substitute the United States as the defendant, citing a new certification; the court denied it. On May 5, 2026, it filed a joinder as amicus curiae supporting Trump's motion to stay the appeals court's mandate, saying “the United States will petition for a writ of certiorari with respect to the Panel's refusal to honor the United States' Westfall Act certification and failure to substitute the United States as the party defendant.” On July 28, 2026, the department and Trump's personal lawyers filed separate Supreme Court petitions (United States v. Carroll, No. 26-142, and Trump v. Carroll, No. 26-141). The government's petition argues that “the sitting President is facing nearly a hundred million dollars of personal liability for conduct that was well within the scope of his federal office,” and offers the Court “a statutory option to dispose of the case, without having to decide the significant constitutional immunity issues.” If the substitution were allowed, the case would be dismissed, CNBC reported. Carroll's response was due October 30, 2026; the Court has not acted.
The department is not Trump's lawyer in the case, and the Westfall Act is a real statute that Trump's first-term Justice Department also invoked here. What is new is the government asking the Supreme Court to wipe out a jury verdict against the sitting president personally, after the department under his predecessor had withdrawn that protection.
Update (November 2, 2026): Carroll filed her opposition on October 30, after Justice Sotomayor allowed a consolidated brief of up to 13,500 words, Supreme Court docket No. 26-142 shows. Her lawyers, led by Roberta Kaplan, told the justices they do not need “to bail out this president from the consequences of his repeated litigation choices,” the Guardian reported, and said: “While this President may want this Court's help, the Presidency does not need it.”
The brief says Carroll has litigated “through five appeals, eight stay motions, and six days of trial” in the face of “thousands of threats of death and sexual violence from his followers,” according to the Guardian. A spokesman for Trump's legal team called the case “the Democrat-funded travesty of the Carroll Hoaxes.” The docket lists no reply or conference date yet, and the Court has not acted. This account of the brief rests on the Guardian's report and the docket entry.