elie honig
CNN legal analyst: Merrick Garland is making a mistake here
02:58 - Source: CNN
New York CNN  — 

When the Justice Department argued in a court filing Monday that it should be allowed to protect former President Donald Trump from a defamation lawsuit brought by a longtime magazine columnist who accused him of rape, a move that would hugely benefit Trump by likely ending the litigation, some wondered why the Biden administration would take such a position.

After all, the White House has changed hands since the lawsuit was first filed, and the Justice Department – which, under former Attorney General William Barr, widely seen as a staunch Trump ally, initially argued for the right to substitute itself for Trump as the defendant – is now led by Merrick Garland.

But for some who have worked in the DOJ, the department’s position came as no surprise because they saw it as an effort to protect the institution of the presidency rather than an attempt to insulate Trump.

“The department likely held its nose and winced in making the argument, but they’re playing the long game,” said Michael Weinstein, a former federal prosecutor in Washington, DC. “They don’t want to be seen as pro-Trump, but they are looking at protection of federal officials and the President in the future.”

The lawsuit filed by the columnist, E. Jean Carroll, alleges Trump defamed her when he denied raping her, said she wasn’t his type and claimed she made the allegation to boost sales of her new book.

Indeed, in its response filed Monday as part of an appeal in the 2nd US Circuit Court of Appeals, the department went out of its way to disavow Trump’s response to Carroll, at various points in the filing calling it “crude,” “disrespectful” and “without question unnecessary and inappropriate.” (A spokesman for President Joe Biden, meanwhile, said the White House “was not consulted by DOJ on the decision to file this brief or its contents.”)

But, DOJ lawyers argued, Trump was acting “within the scope of employment,” writing that “speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.”

“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,” they wrote.

That position, Weinstein said, is “so important that it trumps – pun intended – the terrible comment he made in this situation.”

e. jean carroll new day 071619
E. Jean Carroll: 'I'm not sorry' (2019)
04:10 - Source: CNN

“The issue really comes down to, they’re trying to protect future presidents from the chipping away of protections that they’re now entitled to,” he added. “So as distasteful as it may be for current officials, as I said, they’re playing the long game.”

DOJ’s appeal came in response to an October ruling by a district judge who rejected the department’s argument that Trump’s statements regarding Carroll were made within the scope of his employment, writing, “while commenting on the operation of government is part of the regular business of the United States, commenting on sexual assault allegations unrelated to the operation of government is not.”

If the department were allowed to intervene in the case, it likely would have led to its dismissal, because the government itself cannot be sued for defamation.

Others, however, said the DOJ’s position demonstrates it is taking an extreme view of executive authority.

“It shows this Department of Justice – primarily, I would assume, the career staff – believes in this view of executive authority, that anything the president does, he does as president. Even talking about a rape allegation,” said Harry Sandick, a former federal prosecutor in New York.

“The argument is not that different from saying anything the President does is within the scope of his employment,” he said. “Almost saying anything he says or does as president, DOJ will have to come in and defend.”

Carroll’s lawyer, Roberta Kaplan, said in a statement following the DOJ’s filing that its 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.”

Both Carroll’s attorneys and the department lawyers have asked for oral arguments in the appeal, but no dates have been set.

Sandick, meanwhile, pointed to an aspect of the Carroll case that he characterized as a promising development with regard to the independence of the Justice Department from the White House, one he suggested was a break from the dynamics of the previous administration.

“It’s certainly a positive that they aren’t doing what Joe Biden tells them to do.”