Joe Biden is president, but Donald Trump apparently still gets the United States Department of Justice as his personal law firm. The Justice Department is continuing with the effort, begun while William Barr was attorney general, to take over Trump’s defense against a defamation suit brought by writer E. Jean Carroll.
The line of argument launched by the Barr Justice Department and continued in a Monday night brief filed under the leadership of Attorney General Merrick Garland is that Trump was acting in his official capacity when he dismissed Carroll’s rape allegation against him by insisting, falsely, that he had never met her, with statements like, “She is trying to sell a new book—that should indicate her motivation. It should be sold in the fiction section,” and, “She’s not my type.” And, the argument continues, if Trump was acting in his official capacity when he publicly dismissed allegations against him as an individual, then he was covered by a law giving federal employees immunity from libel suits.
”Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” the acting head of the Justice Department’s Civil Division, Brian Boynton, wrote in the filing. “Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials’ employment—including when the statements were prompted by press inquiries about the official’s private life.”
If the courts accept this argument, Carroll cannot sue Trump.
U.S. District Judge Lewis Kaplan rejected the argument in October 2020, writing, “The President of the United States is not an ‘employee of the Government’ ... even if he were such an ‘employee,’ President Trump's allegedly defamatory statements concerning Ms. Carroll would not have been within the scope of his employment.” The Justice Department appealed that decision, and this week they continued to pursue the appeal.
“The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward,” Carroll’s lawyer, Roberta Kaplan, said in a statement following the Justice Department’s latest action.
During his presidential campaign, President Biden criticized the Justice Department's effort to act as Trump’s “own law firm.” The current White House now is seeking to distance itself from the Trump White House by emphasizing the Justice Department’s independence in its decisions.
”This is in active litigation, and so we refer you to the Department of Justice concerning its court filings,” White House spokesperson Andrew Bates said. “The White House was not consulted by DOJ on the decision to file this brief or its contents. While we are not going to comment on this ongoing litigation, the American people know well that President Biden and his team have utterly different standards from their predecessors for what qualify as acceptable statements.”
In short, the Biden administration would have us believe that while Biden does not condone these specific statements by Trump, the principle is just too important to abandon. But Kaplan’s point is critical here: While some public officials have in the past been able to use the Westfall Act as a get out of jail free (or, anyway, get out of defamation suit free) card for statements about their personal lives, that’s wrong. Public officials cannot be allowed to commit private abuses and then use their public roles to evade consequences. The Biden administration’s claim to uphold the law is a matter of interpretation, and in this instance it’s an interpretation that’s enabling abuse.
