Author E. Jean Carroll was a well-known New York area television host in 1996 when she encountered Donald Trump at a Manhattan department store. At first Trump greeted Carroll with what she remembered as “banter,” but when she emerged from a dressing room a short time later and called a friend, it was obvious that Carroll was extremely upset. The friend reported that Carroll kept saying that Trump pulled down her clothes, shoved her against the wall, and raped her, all while she tried to fight back. Carroll also described the incident to a colleague two days later, but was reluctant to go to the police.
When Carroll spoke about assault by Trump during a 2019 interview, the immediate response from Trump was to call Carroll’s claims about the rape a “totally false accusation” and to call Carroll “a woman who's also accused other men of things, as you know.” On a second occasion, Trump claimed he would never have assaulted Carroll because “She’s not my type.” The encounter was more than two decades ago, so Carroll could not file charges of rape, but she could, and did, file a defamation suit against Trump for claiming that she was lying about their encounter and for saying she had made up things about other men. That suit has been moving forward over objections from Trump’s attorneys, with a judge ruling last month that Trump could be called to make a deposition in court.
But now the William Barr Department of Justice for Donald Trump, and only Donald Trump, is stepping in to take over Trump’s defense with a claim even more extraordinary than Trump’s own: When Trump denied raping a woman in a dressing room, demeaned her appearance, and called her a liar he was “acting in his official capacity as president.” If the DOJ can find a judge who agrees, not only can Trump be defended at taxpayer expense, the case could be summarily dismissed.
The New York Times, displaying the same kid-glove treatment so often provided to all things Trump, describes having the DOJ step into the middle of this lawsuit after it’s survived multiple attempts by Trump’s personal attorneys to have it halted as “unusual.” A more reasonable adjective might be “unprecedented.” More accurate still might be “outrageous.”
The court filing asserts a claim that Trump was acting in an official capacity while demeaning someone talking about a event that happened twenty years before he ever took office. And since government officials are immune from being charged with defamation in execution of official duties, the effect is not just to have Trump get legal care whose bill is footed by everyone else—including the woman he’s attacking—but to essentially move for an immediate dismissal of the whole case.
Under what possible definition could this be said to be Trump acting in an official role? Well, first off, because William Barr says so. Under the Federal Tort Claims Act the attorney general, or a delegate of the attorney general, reviews and certifies whether or not an act is “within delegated authority” of a government position. And that’s all it takes to make it so.
The court filing contains a detailed description of the alleged assault by Trump, Carroll’s claims in the matter, Trump’s denials, and evidence that Trump and Carroll absolutely did know each other prior to the alleged assault. The DOJ’s case to defend Trump consists entirely of this: “(James G. Touhey, Jr., acting a delegate of Barr) … hereby certify, on the basis of the information now available with respect to the incidents alleged in the complaint, that Defendant Donald J. Trump was acting within the scope of his office as the President of the United States at the time of the alleged conduct.” That’s it. No evidence. Not even any argument.
There’s little doubt that the DOJ official charged with making this claim will be sent packing as soon as they appear in front of a judge. It’s the kind of blanket certification that would literally provide Trump with immunity from all claims. The kind of blanket certification that would send most judges, and most attorney generals, reeling in horror.
However, it’s unlikely that the designated DOJ attorney will get that dressing down soon. Because the real intention of this action seems to be simply to do what Trump’s attorney’s could not manage in state court: Delay the case until after the election so Trump will not have to give a deposition in open court. In fact, it would be completely unsurprising if the whole DOJ effort was withdrawn on November 4. Because even outrageous is being generous.
