That didn’t happen. The video of the incident shows it was the intern who tried to grab the microphone from Acosta’s hands while he was asking the President a question. Nevertheless, Acosta’s press pass was revoked, underscoring the false implication that Acosta had assaulted a defenseless staffer.
So can Acosta sue for defamation?
The answer is no. As a federal official, Sanders is immune from defamation claims that arise from her professional duties under the Federal Tort Claims Act.
“This is just categorically beyond the scope of what federal law allows,” said Aziz Huq, a professor of law at the University of Chicago. “It’s clear that Sarah Huckabee Sanders, when she said the thing about Acosta, that was in her capacity as a spokeswoman for the White House.”
The Federal Tort Claims Act dates from the 1940s. In 1988, Congress amended the law to create immunities from defamation and slander claims for federal officials. Huq wrote an opinion piece in 2017 calling on Congress to amend the law to allow such claims.
The law did not stop Stephanie Clifford, a.k.a. Stormy Daniels, from suing President Trump for defamation earlier this year. She had alleged that an unknown man had tried to intimidate her in 2011 when she gave an interview about her sexual encounter with Trump. Her attorney commissioned a police sketch of the man, and Trump replied on Twitter that Clifford’s allegations were “a total con job.” Clifford sued Trump in his individual capacity, alleging that he had defamed her.
In that case, Judge James Otero threw out the suit on the grounds that Trump’s remarks were “rhetorical hyperbole,” and thus not subject to a defamation claim.