The Justice Department moved on Tuesday to replace President Donald Trump’s private legal team with government lawyers to defend him against a defamation lawsuit by the author E. Jean Carroll, who has accused him of raping her in a Manhattan department store in the 1990s.
In a highly unusual legal move, lawyers for the Justice Department said in court papers that Trump was acting in his official capacity as president when he denied ever knowing Carroll and thus could be defended by government lawyers — in effect underwritten by taxpayer money.
Though the law gives employees of the federal government immunity from most defamation lawsuits, legal experts said it has rarely, if ever, been used before to protect a president, especially for actions taken before he entered office.
“The question is,” said Steve Vladeck, a University of Texas law professor, “is it really within the scope of the law for government lawyers to defend someone accused of lying about a rape when he wasn’t even president yet?”
The motion also effectively protects Trump from any embarrassing disclosures in the middle of his campaign for reelection.
A state judge issued a ruling last month that potentially opened the door to Trump being deposed in the case before the election in November, and Carroll’s lawyers have also requested that he provide a DNA sample to determine whether his genetic material is on a dress that Carroll said she was wearing at the time of the encounter.
Carroll’s lawyer said in a statement issued Tuesday evening that the Justice Department’s move to intervene in the case was a “shocking” attempt to bring the resources of the U.S. government to bear on a private legal matter.
“Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent,” the lawyer, Roberta A. Kaplan, said, “and shows even more starkly how far he is willing to go to prevent the truth from coming out.”
Carroll herself accused the president of siccing Attorney General William Barr against her. “TRUMP HURLS BILL BARR AT ME,” she wrote on Twitter.
The Justice Department did not respond to a request for comment on the motion.
Citing a law called the Federal Tort Claims Act, the department lawyers asserted the right to take the case from Trump’s private lawyers and move the matter from state court to federal court.
The government filing was yet another attempt by Trump to stall the defamation case, Kaplan said, noting that he had used the tactic several times in Carroll’s suit and other legal matters.
“Trump’s strategy in this case from Day 1 has been delay, delay, and more delay,” Kaplan said, adding, “Our job is to make sure that doesn’t happen.”
Carroll sued Trump last November, claiming that he lied by publicly denying he had ever met her. A longtime columnist for Elle magazine, she wrote in a book excerpt published in New York magazine in June 2019 that Trump had thrown her up against the wall of a dressing room at Bergdorf Goodman, an upscale department store in Manhattan, in late 1995 or early 1996. Then, she claimed, Trump pulled down her tights, opened his pants and forced himself on her. She also insisted that security cameras captured both of them moving together before the alleged assault inside the store.
In her suit, Carroll accused Trump of defaming her by publicly stating in an interview with The Hill newspaper in June 2019 in the Oval Office that the assault never happened and that he could not have raped her because she was “not my type.” Trump, according to Carroll’s suit, also issued an official statement that same month saying she was lying about the alleged assault.
Trump said he had never met Carroll, but the two were photographed together at a party in 1987 with her former husband. The president has called the image misleading.
More than a dozen women have accused Trump of sexual misconduct that they said took place before he was elected president.
Trump’s private lawyers sought to have Carroll’s suit dismissed by arguing that the Constitution gave a sitting president immunity against civil suits in state court.
But Justice Verna L. Saunders of state Supreme Court in Manhattan recently rejected those arguments, citing a recent U.S. Supreme Court ruling that found Trump could not block a subpoena for his tax returns by the Manhattan prosecutors.
A White House official said Tuesday night that precedent existed under the Federal Tort Claims Act for the Justice Department to step in and defend Trump in the newly chosen venue: the U.S. District Court in Manhattan. Carroll’s case will immediately be moved to federal court and her lawyers will have to ask a judge there to return the matter to state court.
The closest similar case came in 2005, Vladeck said, when a federal court in Washington ruled that government lawyers could defend Cass Ballenger, then a Republican representative from North Carolina, in a defamation lawsuit brought against him by the Council on American-Islamic Relations.
Vladeck said that while it was fairly uncommon for the Justice Department to assume the defense of a private matter on behalf of any government official, it was even more extraordinary for department lawyers to seek to shield Trump’s personal behavior behind a screen of “sovereign immunity.” If the federal judge in Manhattan assigned to the case agreed with the department’s arguments, Carroll’s lawsuit would effectively be over, Vladeck said.
Some current and former Justice Department lawyers, speaking on the condition of anonymity, echoed Vladeck’s concerns, saying they were stunned that the department had been asked to defend Trump in Carroll’s case. By moving to take control of the matter, the department had raised a critical question, the lawyers said: Was it truly within the scope of a president’s duties to comment on the physical appearance of a woman who had accused him of rape?
But rare as it was to use the Federal Tort Claims Act in this way, it was hardly the first time that Trump’s Justice Department stretched legal norms on his behalf.
Last year, for example, Barr gave a public summary of the findings of Robert Mueller’s Russia investigation that a federal judge later called “distorted” and “misleading.”
Barr’s department also intervened in the criminal case of Trump’s former national security adviser Michael Flynn, requesting to drop the prosecution — a move that a federal judge has held up while he is scrutinizing it.
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