The Justice Department argued in a brief filed Monday that it should be permitted to substitute itself for former President Donald Trump as defendant in a defamation lawsuit brought by a longtime magazine columnist, E. Jean Carroll, who accused him of rape, continuing the argument it had initiated under the previous administration even as the White House has changed hands.
“Then-President Trump’s response to Ms. Carroll’s serious allegations of sexual assault included statements that questioned her credibility in terms that were crude and disrespectful,” Justice Department lawyers wrote in a brief to the 2nd US Circuit Court of Appeals. “But this case does not concern whether Mr. Trump’s response was appropriate. Nor does it turn on the truthfulness of Ms. Carroll’s allegations.”
Rather, the lawyers wrote, because they believe Trump was an employee of the government and that he acted “within the scope of employment,” the department, rather than Trump personally, should serve as defendant in the case.
In submitting the brief Monday, the department continued the argument it has been making for months: that a president’s comments are an official function of his job, even if they pertain to a personal matter. Since it first took that position, however, Trump has been replaced by President Joe Biden, and while the brief the department filed included plenty of unkind words regarding the former President’s behavior, it will benefit Trump if it succeeds.
“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” they wrote. “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.”
The White House said it hadn’t been consulted by the Justice Department before the brief was filed.
“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,” White House deputy press secretary Andrew Bates said in a statement.
In October, a district judge rejected the Justice Department’s attempt to replace Trump in the lawsuit. If the department had been allowed to intervene in the case, that likely would have led to its dismissal, because the government cannot be sued for defamation.
Carroll’s lawsuit alleges that Trump defamed her when he denied raping her, said she wasn’t his type and claimed she had made the allegation to boost sales of her new book.
The Justice Department lawyers wrote Monday that when reporters had asked Trump about Carroll’s claims, “he acted within the scope of his office.”
“Officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives,” they wrote.
They acknowledged that Trump “attacked her appearance, impugned her motives, and implied that she had made false accusations against others,” adding that such statements were “without question unnecessary and inappropriate.”
“But they all pertained to the denial of wrongdoing – which cannot be cleanly severed from the accompanying explanation here,” they continued. “The fact that the additional statements were, at minimum, inappropriate does not automatically take them outside the limits of the scope of employment.”
A lawyer for Trump, Marc Kasowitz, filed a separate brief making similar arguments and alleging that “there is a wide gulf between Carroll’s rhetoric and reality.”
“This is not a case where a President, without prompting, randomly targeted a private citizen,” Kasowitz wrote. “Rather, Carroll, a public figure, accused Trump of terrible misconduct twenty years earlier in a book and magazine article for which she sought maximum publicity. He denied her accusations in precisely the manner she expected. A short time later, she sued him for defamation. Carroll had no intention or expectation that this would be a private, personal dispute, and it was not.”
This story has been updated with a statement from the White House.