Well, this is just gross.
On Tuesday, the Department of Justice told a New York state court it plans to step in to defend a defamation lawsuit filed against Trump by author E. Jean Carroll last November. Carroll has accused Trump of raping her in a Manhattan department store in the 1990s; Trump is currently paying private attorneys to defend him against claims that he defamed Carroll when he publicly denied the allegations, said he had no idea who Carroll was, and that he couldn’t have raped her, because she “wasn’t his type.”
According to papers filed by the DOJ, Trump acted in his official capacity as president when he made the statements denying ever knowing Carroll. And because the president was essentially just doing his job when he was vigorously denying those rape allegations, it’s appropriate under federal law for the DOJ to step in.
As University of Michigan law professor Leah Litman noted on Twitter, DOJ attorneys are essentially arguing that Trump’s misogyny is part of his job. So that’s swell.
How on Earth is the DOJ making this argument? Well, gather round y’all because this is where it gets weird. And terrible. I mean, it was already weird and terrible, so this is where it gets weirder and more terrible.
DOJ lawyers have pointed to a federal statute as the source for their claim that they can act as Trump’s personal defense team (which, by the way, means taxpayers are footing the bill). According to the DOJ, the Federal Tort Claims Act (FTCA) gives its attorneys the power to step in and defend the claims against Trump.
What is the Federal Tort Claims Act? And does it … do what DOJ claims it can do here?
The FTCA is a federal statute that says sometimes it’s OK for private citizens to sue the government. That’s because usually, under the doctrine of sovereign immunity, the federal government and its employees can’t be sued for torts committed while acting in their official capacity. So the FTCA acts as a limited waiver of that idea of sovereign immunity when it comes to some kinds of torts.
What are torts, you’re probably asking? Torts are the lawyer word for certain types of legal claims that arise between two individuals. As an example, let’s say that during a particularly boisterous planning session for our new season of Boom! Lawyered, Imani Gandy, senior editor for law and policy, and I got in an argument and she tweeted that I’m an anti-choice numpty in disguise. I could sue Imani for defamation because I MOST CERTAINLY AM NOT an anti-choice numpty in disguise. My lawsuit against Imani would be based on a tort claim that she defamed me by spreading public lies that I’m an anti-choice numpty. And because Imani is a private citizen and not a member of the government, I could go ahead and file that claim in state court and we’d duke it out there. It’s a weak claim, and we all know none of this would happen, but you get the idea.
In Carroll’s case, she’s claimed that Trump the individual—not Trump the president—defamed her. It’s a classic tort claim. And for damn near a year, the DOJ seemed … unbothered by the existence of that lawsuit. Certainly Attorney General Bill Barr and his associates didn’t think it was a serious enough threat to the president to warrant throwing the full force and weight of the federal government behind its defense. And certainly the DOJ has had plenty of time to think about whether Trump was acting in his official capacity when he was out there denying rape allegations left, right, and center.
So. What’s changed? Why would the DOJ make this move to intervene now? What must Trump and Barr be afraid of coming to light in this lawsuit?
My first guess: a Trump deposition. The DOJ’s motion to intervene in the case came about a month after a state judge in New York issued a ruling that could have had Trump possibly deposed before the November election. Would a deposition have been guaranteed? Nope. But it’s certainly a ton of bad press and attention on Trump leading into November. Also, Carroll’s lawyers have made a formal request for Trump to provide a sample of his genetic material so that it can be tested to determine if it matches the DNA on a dress Carroll said she was wearing at the time of the assault. I’m guessing Trump doesn’t want any part of that discovery, either.
Oh—apparently the Trump campaign is running low on cash, which has the president reportedly looking to contribute about $100 million of his own private wealth to support his reelection efforts. So maybe he’s just like the rest of us and looking for ways to stretch a dime during a pandemic.
There’s more. The DOJ isn’t just trying to step in and defend Trump here. It’s effectively asking that the court substitute the United States as a party to the lawsuit in place of Trump. Think of it this way: Under the DOJ’s request, Carroll would effectively be suing the United States for defamation rather than Trump. But guess what. It just so happens that the FTCA prevents defamation claims from being brought against the federal government. So that means if the DOJ is successful in arguing Trump was another federal employee just doing his job when he denied raping her to the press, Carroll’s case against Trump is dismissed. Poof! Just like that. Almost a year of litigation against the president down the drain thanks to some last-minute shady lawyering by government lawyers.
Like I said at the top, this entire story is gross. I’m not at all surprised Trump would want to leverage the DOJ to try and silence Carroll. And frankly, I’m not surprised that Barr apparently sees himself more as Trump’s consigliere than as the chief law enforcement official for the rest of the country. Under Barr’s leadership, the DOJ has functioned as the president’s private law firm on the public dime. From impeachment to low-key suggesting voters engage in voter fraud, to this latest nonsense, Barr has debased himself and the Office of Attorney General from Day One on the job. That he hasn’t yet been impeached is beyond a mystery to me. Honestly. What gives?!
Thanks to the DOJ’s motion to intervene, Carroll’s case will now be transferred to a federal court in Manhattan. Carroll’s lawyers will have the chance to argue that the DOJ is wrong and federal law doesn’t allow taxpayers to foot the bill for defending the president against the charge of defaming a woman who accused him of raping her decades before he took office. If Carroll’s attorneys are successful, the case heads back to state court in New York and the litigation will proceed. But the likelihood of a Trump deposition before the election plummets. And as I already mentioned, if the DOJ is successful, then Carroll’s claims against Trump will be dismissed, kicked out on the argument that smearing a private citizen is a merely routine part of being president of the United States.
It’s hard to say whether the DOJ will be successful. There’s a little bit of case law involving elected officials shooting their mouths off, but nothing that reaches as far as the DOJ would like the FTCA to reach here. And it’s possible that in order to intervene in the lawsuit, Trump will have to submit an affidavit as to why it’s a necessary part of Trump’s job to reassure constituents that he didn’t rape Carroll. I imagine the DOJ will try and fight that too.
The word “unprecedented” gets tossed around a lot when describing actions of the Trump administration and its enablers. But Tuesday’s motion by the DOJ is truly that—an unprecedented abuse of power targeting a woman who dared speak out against the president. And here’s what’s truly chilling: If the courts let the DOJ succeed here, what is to stop Trump and Barr from similarly weaponizing government lawyers against other private citizens it deems threats to the president’s power?