This week, the Department of Justice took a surprising step down the path set by former Attorney General William Barr, filing a brief that signaled its intent to continue efforts to represent former President Donald Trump in the defamation lawsuit brought by E. Jean Carroll. But how can comments made about an alleged rape that Carroll said took place decades before Trump took office be part of his official duties?
Simply put, DOJ has chosen a course of action that would extinguish Carroll’s lawsuit without any remedy or effort to uncover the truth. That’s bad for Carroll, obviously, but it’s also bad for efforts to restore people’s faith in DOJ and our legal system.
The DOJ has chosen a course of action that would extinguish Carroll’s lawsuit without any remedy or effort to uncover the truth.
Longtime advice columnist Carroll released an excerpt from her book “What Do We Need Men For? A Modest Proposal” in New York magazine in June 2019 ahead of its publication the following month. The book, a discussion of the “hideous” men in her life, revealed her claim that Trump raped her in a Bergdorf Goodman dressing room in the 1990s.
Trump responded publicly three times, using language DOJ now concedes was “crude and disrespectful.” Trump said Carroll was “totally lying” and dismissed the former Miss Cheerleader USA as not his “type.”
Carroll sued in state court in New York. After almost a year spent delaying the proceedings, Trump was on the verge on having to comply with Carroll’s discovery requests — among them, a test to see if Trump’s DNA matched the dress Carroll wore that day, which she had preserved in the back of her closet. At that point DOJ, under Barr’s leadership, suddenly showed up, arguing for the first time that DOJ should represent the president and remove the case to federal court.
Carroll’s lawyers challenged DOJ’s push to represent Trump, and DOJ lost in federal district court. That decision is currently being appealed. But the DOJ, now led by Attorney General Merrick Garland, has surprisingly embraced the Barr strategy of representing Trump, instead of rejecting it.
So, what’s going on here?
This decision doesn’t mean Garland is anything like Barr. He's not perverting justice to serve a corrupt president. Ultimately the 2nd Circuit, or perhaps the Supreme Court, will decide whether DOJ can represent Trump in this matter. DOJ will respect the court’s judgment. And DOJ’s arguments are based on legal precedent — respectable if distinguishable. They appear to have been made in good faith, and whether one agrees with them or not, they represent a return to a DOJ that acts independently, rather than serving a president’s political whims.
But that doesn’t mean DOJ made the right decision here. DOJ needs to live up to its name — the Justice Department — and ensure that above all else, we have a functioning rule-of-law system in which no one is above the law and people believe it is fair.
As Robbie Kaplan, Carroll’s lawyer told me: "We too strongly support a return to longstanding Justice Department norms. But when the prior administration violated those norms in pursuit of a personal and political errand for Donald Trump, adhering to that position now actually undermines rather than advances the rule of law. Here, the current Justice Department made a critical mistake: It should have recognized that its earlier, extreme position that every president, senator or representative is effectively immune from defamation claims no matter what they say or how they say it was not what anyone understood the law to be and is clearly wrong, as we believe the 2nd Circuit will conclude."
We should hope Kaplan is right about how the 2nd Circuit will rule, because it's not just Trump’s legal representation that’s at stake here.
We should hope Kaplan is right about how the 2nd Circuit will rule, because it's not just Trump’s legal representation that’s at stake here.
When a government employee, acting in their official capacity and within the scope of their official duties, gets sued for committing a tort (a harmful act the law can impose liability for), the United States, under the Westfall Act, can move to substitute itself as the defendant. In essence, this means the government steps into the shoes of its employee to take on the liability for official acts. That’s what DOJ is trying to do here, with Trump.
To complicate matters, under longstanding principles derived from the English legal system, the government enjoys broad sovereign immunity from being sued. The Federal Tort Claims Act was passed to provide exceptions that permit people to sue when they are harmed by the acts of a federal employee — for instance, if they are hit by a mail truck while a postman is delivering mail. But defamation is not among those exceptions, meaning the government typically can’t be sued for defamation. As a practical matter, if the United States becomes the substitute defendant for Trump, the case is likely to be dismissed due to this immunity.
The federal judge who ruled against DOJ after it removed the case to federal court soundly rejected its justification for entering the case. In careful fashion, he reviewed each argument and conclusively rejected Trump’s eligibility for federal representation.
After that, Garland could have withdrawn DOJ’s request to represent Trump. This would have been particularly appropriate in light of the soundness of the district court’s legal conclusions and given the circumstances surrounding DOJ’s late entry into the case, which suggest this was another episode of Barr serving the president, not the people.
So DOJ had a choice to make here, and it made the wrong one. There was no reason to reject the district court’s judgment that a president, uniquely among those in the executive branch, is not an employee who is subject to the control of an employer — a prerequisite for federal representation in this situation. More importantly, he found that even if Trump could be considered an employee, his conduct toward Carroll fell outside of the scope of his employment responsibilities.
How could it not? Denigrating a woman in response to a sexual assault allegation, especially when the allegation says the assault occurred two decades earlier, isn’t related, in any way, to the operation of government. Trump was doing nothing to further the nation’s business when he ridiculed his alleged victim.
DOJ could and should have distinguished this case from others where the United States properly assumes liability for torts committed by federal employees, letting the case proceed so Carroll can have her day in court and leaving Trump to work with his own lawyers. Cloaking him with the protection of DOJ’s legal representation is unnecessary and inappropriate.
DOJ lawyers are no strangers to making the type of nuanced arguments that would have distinguished Trump’s unique situation while still protecting institutional interests for future cases. It should be possible to protect Justice and do justice simultaneously.
It’s also possible to simultaneously celebrate DOJ’s newly restored rejection of political interference and return to independence while criticizing the substance of its decisions. No one can be above the law, and that must include the former president if we’re going to restore the credibility of our legal system.
If this case is dismissed, Trump will, yet again, have slipped the bounds of the law. That will only further tarnish the reputation of the institution DOJ lawyers are trying to protect. Ultimately, it could even damage the institution itself, leaving virtually no conduct by a president, no matter how outrageous, outside of the scope of what DOJ is obligated to defend. This in turn could push presidents further and further beyond the reach of the law. DOJ could end up protecting the institution so hard that it ends up damaging it.