WASHINGTON — The Justice Department is keeping up the previous administration’s fight to defend former president Donald Trump against a private defamation lawsuit brought by a woman who accused him of rape — an effort that President Joe Biden had criticized on the campaign trail.
A federal judge in Manhattan ruled last fall that DOJ couldn’t take over Trump’s defense against a case filed by the writer E. Jean Carroll; Carroll accused Trump of defaming her when he publicly denied her allegation that he had raped her more than 20 years ago in a department store dressing room. The government appealed and filed an opening brief defending its position less than a week before Biden took office in January.
On Monday, lawyers for the Justice Department as well as Trump’s personal legal team were due to file the next round of briefs — marking the first major deadline for the department under the new administration to weigh in. In the government’s latest brief, the Justice Department lawyers continued to press arguments that the lower court judge got it wrong when he concluded that Trump wasn’t shielded from being sued and was acting within the scope of his official duties as president when he accused Carroll of lying.
“When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President,” the Justice Department wrote in Monday’s reply brief. “Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office.”
The Justice Department under Biden inherited numerous pending Trump-era legal fights, but Carroll’s case was one of the few that Biden had offered an opinion about when he was running for office. A turnover in the White House can create sticky situations for DOJ to navigate — the department historically defends the authority of the executive branch and senior administration officials in court, even as the politics of the party in power changes across presidents.
The department took several jabs at Trump in Monday’s brief, writing that his comments in response to Carroll were “crude and disrespectful,” "unwarranted," "distasteful," and "unnecessary and inappropriate." Government lawyers also stressed that the case didn't "turn on the truthfulness" of what they described as Carroll's "serious allegations of sexual assault."
But the department argued that the case at its core “does not concern whether Mr. Trump’s response was appropriate.” Instead, government attorneys wrote, Carroll’s case dealt with when and how federal laws meant to protect federal employees applied to a sitting president, which were “questions that implicate the institutional interests of the federal government.” Addressing misconduct allegations can fall within the "category of activities" that a president performs, DOJ lawyers wrote. Citing an earlier case that involved libel claims against a member of Congress, the government argued that these types of public statements by an elected official should be shielded against a lawsuit if they touched on issues of concern to constituents.
DOJ’s effort to intervene in the case last fall was widely criticized as a misuse of government resources on behalf of Trump. During a nationally televised town hall event in October, Biden had highlighted the Carroll case as an example of Trump trying to use the Justice Department as his “own law firm.”
“Can you remember any Republican president going out there, or former Democratic president, ’Go find that guy and prosecute him’? You ever hear that? Or: 'By the way, I'm being sued because a woman's accused me of rape. Represent me. Represent me.' ... What's that all about? What is that about?” Biden said at the time.
White House spokesperson Andrew Bates said in a statement that the "White House was not consulted by DOJ on the decision to file this brief or its contents." At his Senate confirmation hearing earlier this year, Attorney General Merrick Garland spoke about his commitment to "reaffirming ... norms" at the department, including policies that "strictly regulate communications with the White House."
"And 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," Bates wrote.
Carroll sued Trump in state court in New York in November 2019. Trump had litigated the case for months using privately retained lawyers. In September, however, DOJ filed notice that it was moving the case to federal court and intended to take over Trump’s legal defense on behalf of the US government.
The department argued at the time that Trump was covered by a federal law that protects federal employees from being sued as individuals over actions they take as part of their work, known as the Westfall Act. When Trump, as president, denied Carroll’s allegation and accused her of making it up to sell copies of her book, the Justice Department argued that this law applied.
If DOJ succeeded, the US government would become the defendant instead of Trump as an individual. That would likely end the lawsuit, since the government is shielded by a legal principle known as “sovereign immunity” against a range of civil claims, including libel.
In an opinion in late October, US District Judge Lewis Kaplan found that Trump wasn’t a government “employee” under the Westfall Act, which refers to “officers or employees of any federal agency.” Even if Trump was an “employee” within the meaning of that law, the judge wrote, his comments about Carroll didn’t fall within the scope of his official duties as president, so the law still wouldn’t cover his situation.
“A comment about government action, public policy, or even an election is categorically different than a comment about an alleged sexual assault that took place roughly twenty years before the president took office. And the public’s reasons for being interested in these comments are different as well,” Kaplan wrote in the opinion. “The president’s views on the former topics are interesting because they alert the public about what the government is up to. President Trump’s views on the plaintiff’s sexual assault allegation may be interesting to some, but they reveal nothing about the operation of government.”
The Justice Department and Trump’s personal legal team, led by his longtime attorney Marc Kasowitz, appealed to the US Court of Appeals for the 2nd Circuit. On Jan. 15, the Justice Department and Trump’s personal lawyers each filed opening briefs challenging Kaplan’s decision. Carroll’s lawyers filed a response on April 16.
DOJ and Trump were due to file their replies to Carroll’s brief by May 7, but asked the appeals court for a monthlong extension, which the court approved. The Justice Department didn’t cite the new administration as the reason for the delay, which the government historically has done postelection in some cases, saying only that the lawyer handling the case was up against deadlines in multiple other cases and needed more time. As of late April, the Justice Department had signaled it was still participating in the case, with one of the lawyers notifying the court about when he’d be available for arguments later in the year.
In a statement provided by her legal team in response to the Justice Department's latest brief, Carroll said, "As women across the country are standing up and holding men accountable for assault---the DOJ is trying to stop me from having that same right. I am angry! I am offended!"
Carroll's lawyer Roberta Kaplan also issued a statement saying they were confident they'd win on appeal.
"It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago. But it is truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thereby depriving our client of her day in court. 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. Calling a woman you sexually assaulted a ‘liar,’ a ‘slut,’ or ‘not my type,’ as Donald Trump did here, is not the official act of an American president," Kaplan said.