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Trump’s Desperate DOJ Dodge on Defamation

But Bill Barr’s maneuver isn’t the end of the story.
by Kim Wehle
September 10, 2020
Featured Image
US President Donald Trump (R) and US Attorney General William Barr step off Air Force One upon arrival at Andrews Air Force Base in Maryland on September 1, 2020. - US President Donald Trump said September 1, 2020 on a visit to protest-hit Kenosha, Wisconsin that recent anti-police demonstrations in the city were acts of "domestic terror" committed by violent mobs. (Photo by MANDEL NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

On Tuesday, in a bizarre and troubling move, the Department of Justice intervened to serve as Donald Trump’s personal law firm in a lawsuit brought by E. Jean Carroll against Trump in New York state court.

Carroll, you’ll recall, is the longtime Elle columnist who claimed last summer that Trump raped her in a Bergdorf Goodman dressing room 25 years ago. Trump denied the allegation and publicly stated that Carroll made it up—that she was “totally lying.” Carroll responded by suing Trump in November 2019 for defamation. Now the DOJ has, via a process known as removal, yanked the case from New York state court and put it in federal court.

DOJ’s maneuver is the latest in a string of actions by Attorney General Bill Barr that look more like the work of a personal defense attorney than that of a public servant who pledged to represent the interests of the United States and the American people.

Barr’s decision—apparently taken at the request of the White House—puts the institution of DOJ in a painfully tough spot. Under the law governing the next steps in the case, DOJ is likely going to have to justify its decision to use taxpayer dollars on Trump’s personal behalf in connection with a sex-mired set of facts. It will be a hard sell in any court.

Defamation is a state-law cause of action for damaging the good reputation of someone. A defense to defamation is truth. So if Carroll’s case goes forward, Trump might find himself having to prove that she did in fact manufacture the story because he did not, in fact, rape her. Whether or not he is telling the truth is beside the point. The problem for Trump is the discovery process—the depositions and document-gathering in which Trump will have to get into the ugly details of his past, which, according to dozens of women, involves a fair amount of sexual misconduct.

Carroll brought her suit against Trump in his “individual capacity.” This phrase is critical. Governments generally cannot be sued unless they waive what’s called sovereign immunity. The notion of sovereign immunity dates back to the British monarchy and the fundamental premise that the king could do no wrong. Under U.S. law, Congress waived sovereign immunity for certain civil lawsuits against the federal government in a statute called the Federal Tort Claims Act. But in a later statute called the Westfall Act, Congress protected federal employees from being sued for certain claims if they were acting on the job. As a result, defamation suits cannot be brought against the federal government or federal officials if they made the allegedly defamatory statement as part of their work for the federal government.

The Westfall Act also lets DOJ step into the shoes of an individual federal defendant—here, Donald Trump—and substitute the United States. Once that happens, the defendant is no longer Trump-the-individual. The defendant becomes the United States, which cannot be sued for defamation under federal law. DOJ’s intervention in Carroll’s suit is thus an attempt to get her case thrown out entirely by claiming that Trump is totally immune from the lawsuit—even though a private person who did the very same thing that Trump is accused of would not be immune.

But DOJ has a problem. In order to step into Trump’s shoes, it had to file a piece of paper certifying that, when Trump called Carroll a liar, he was “acting within the scope of his office or employment at the time of the incident out of which the claim arose.” Although most federal employees would prefer to have the government pick up the tab for lawsuits filed against them, DOJ only jumps into suits at its discretion. It is optional.

Under the governing regulations, deciding whether to intervene involves a two-step test. First, the conduct must have occurred in the scope of the employee’s work. Second—and this is critical—“the Attorney General or his designee [must] determine[] that providing representation would otherwise be in the interest of the United States.”

Meanwhile, the U.S. Supreme Court has held that DOJ’s certification can be challenged before a judge. Presumably, Carroll’s lawyers will ask for discovery into why DOJ determined that Trump was acting as president when he claimed repeatedly that there is no factual basis for her rape allegations. Under New York law, one of the elements for determining whether an employee is acting in his official capacity is whether Trump’s act of publicly denying the rape and claiming he never met Carroll was in furtherance of the interests of his employer, the United States, and whether that act was done as part of his duties as president.

In sum, the federal judge assigned to this case will likely hear argument from the DOJ that defending Trump in a defamation suit involving an alleged rape while he was a private citizen somehow serves the interests of the United States of America.

This legal immunity ploy by Trump is all too familiar. The Supreme Court in Trump v. Vance just rejected a similar argument by Trump’s lawyers that his family, his banks, and his accountants are totally immune from a grand jury subpoena because of his position as president. The Supreme Court was hung up on the notion that nobody is utterly above the law—even Trump.

Too bad the Department of Justice no longer appears to care.

Kim Wehle

Kim Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins). Her latest book is What You Need to Know About Voting—and Why (HarperCollins). Twitter: @kimwehle.