WASHINGTON — The Justice Department was set to face questions from a federal judge on Wednesday about the government’s unusual effort to take over President Donald Trump’s private defense against a defamation lawsuit filed by the writer and columnist E. Jean Carroll, who accused him of rape.
But less than an hour before the hearing was supposed to begin, the DOJ lawyer who was going to argue asked for a delay, saying that he’d been turned away from the Manhattan federal courthouse that morning because he hadn’t complied with the state’s coronavirus travel restrictions. The judge gave DOJ three options: send another lawyer to the courthouse, argue by phone, or cancel the hearing altogether and have the judge decide on each side’s written briefs alone.
The Justice Department went for the last option, ending the proceeding shortly after it began.
The last-minute switch means the judge won’t get a chance to publicly probe the Justice Department’s extraordinary step last month of seeking to take over Trump’s defense against Carroll’s libel case, arguing that Trump “was acting within the scope of his office as President of the United States” when he denied Carroll’s allegation that he raped her decades before. Nor will Carroll’s lawyers get to argue in court on her behalf and challenge the government’s position.
Carroll went public last year with her allegation that Trump raped her more than 20 years ago in the dressing room of a department store in New York. According to her description of what happened in court filings, Carroll said she told two friends about the alleged attack soon after it happened, but decided not to report it or go public at the time because she feared legal action from Trump, was worried no one would believe her, and blamed herself.
Trump denied that he had raped Carroll, claimed he’d never met her before, and accused her of making up the allegation to sell copies of her book. Carroll filed a defamation lawsuit against Trump in November in state court in New York.
If DOJ succeeds and the federal government is substituted in for Trump as the defendant in the case, it would likely end Carroll’s lawsuit, since the US has what’s known as sovereign immunity against a range of civil claims, including libel.
Carroll’s lawyer Roberta Kaplan told US District Judge Lewis Kaplan (the two are not related) that she was disappointed they wouldn’t get a chance to present arguments. She asked for time to file an additional brief in response to what she said were new arguments raised for the first time by DOJ in a filing this week. The government’s first brief articulating its argument for taking over Trump’s defense against Carroll’s case was five pages long; its latest brief expanding on that position was more than 20 pages long.
The government opposed more briefing, and Kaplan struck a middle ground — he wouldn’t allow more briefs but made clear he wouldn’t consider any of the new arguments that DOJ had raised.
“This is unquestionably a new low for DOJ, which should at least appear in open court to answer for the outrageous positions that it has taken here. We remain confident that the Court will deny the Justice Department’s motion and we look forward to pursuing Ms. Carroll’s case in federal court,” Roberta Kaplan said in a statement released after the hearing.
The judge and the DOJ lawyer, Stephen Terrell, didn’t offer any additional details at the hearing about what had happened earlier in the day. Terrell wrote in his delay request that he was denied access “on the grounds that he had traveled from his place of residence in the Commonwealth of Virginia, which yesterday, apparently, was added to the jurisdictions from which the State of New York bans travel.”
Virginia was added to New York’s travel advisory list requiring visitors to quarantine for 14 days on Oct. 13, according to a press release from New York Gov. Andrew Cuomo, something the judge pointed out in a later order. A DOJ spokesperson and a court representative did not immediately return requests for comment.
Private lawyers for Trump have actively litigated the case in state court for months. In August, the judge denied Trump’s request to pause Carroll’s case while he appealed a decision against him in another civil lawsuit against him in state court in New York — a defamation lawsuit brought by a former contestant on The Apprentice, Summer Zervos. Zervos has also accused Trump of sexually assaulting her and she sued the president for defamation after he accused her of lying.
A month after the state court judge refused to put Carroll’s case on hold, lawyers from the Justice Department moved the case to federal court and in September asked to substitute the US government as the defendant instead of Trump individually. The head of the Justice Department unit that responds to lawsuits against the federal government, James Touhey Jr., had determined that Trump “was acting within the scope of his office as President of the United States when he publicly denied as false the allegations made by” Carroll, DOJ lawyers wrote at the time.
The Justice Department argued that an elected official could still be acting “within the scope” of their office when they spoke to the press about personal matters. The department’s initial round of court papers didn’t address why, nearly a year after Carroll filed suit and after Trump’s personal lawyers had been handling the case, the government decided to get involved now.
Carroll’s lawyers argued that Trump wasn’t doing anything related to his duties as president when he allegedly defamed Carroll. They also contend that the federal law that normally shields federal employees from being sued, the Federal Tort Claims Act, doesn’t apply to the president.
“There is not a single person in the United States — not the President and not anyone else — whose job description includes slandering women they sexually assaulted. That should not be a controversial proposition. Remarkably, however, the Justice Department seeks to prove it wrong,” her lawyer wrote in an Oct. 5 brief.
The US Supreme Court has previously held that sitting presidents can be sued while in office for private matters, and Trump has lost efforts so far to get Zervos’ lawsuit tossed out based on the argument that he’s immune against such claims while he’s president. Zervos’ lawsuit involves statements that Trump made in October 2016 — a month before he won the presidential election — denying Zervos’ allegations that he sexually assaulted her; he has been represented by private lawyers in that case.
In a brief filed on Oct. 19 in Carroll’s case, government lawyers expanded on why they thought it was appropriate for DOJ to take over. They argued that responding to press inquiries while on duty and addressing allegations that implicated his fitness for office and touched on issues of interest to constituents fell within the scope of Trump’s duties as president. DOJ addressed the timing of its intervention briefly in a footnote, saying the department could seek to substitute the government for an individual government official and move a case to federal court any time before a trial began.
Trump’s personal lawyers and the Justice Department have each separately defended the president in other cases that touched on his private business dealings and his position as president. That’s been true in lawsuits filed accusing Trump of violating the Constitution by holding onto his financial stake in his companies after becoming president and fights over congressional and grand jury subpoenas for his personal tax records and other financial documents.
Trump has repeatedly and publicly criticized decisions by the Justice Department that he didn’t agree with and called for criminal prosecutions of political rivals. Earlier in the summer, a career Justice Department prosecutor publicly accused senior DOJ officials of interfering in the criminal case against longtime Trump ally Roger Stone because of Trump’s desire to “cut Stone a break.”
Former vice president Joe Biden recently touted Carroll’s case as an example of Trump turning the Justice Department into his “own law firm.” At a nationally televised town hall event on Oct. 15, Biden said a president doesn’t “own that Justice Department.”
“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.