The Justice Department's latest gift to Trump is sleazy gambit — but it's probably doomed to fail
Attorney General Bill Barr's tenure at the Justice Department was further stained on Tuesday when officials announced in a court filing that the U.S. government will be defending President Donald Trump in a defamation case.
Trump is being sued by columnist E. Jean Carroll, who accused the president of raping her in the '90s. In his denial of the charge, Trump cast aspersions on Carroll and essentially branded her a liar, despite the fact that confidants of the columnist have come forward to say they were told of the assault contemporaneously. Carroll has taken legal action against Trump to hold him to account for his alleged defamation, and she seeks to have him deposed — a risky proposition for the president known for lying constantly.
But on Tuesday, Americans learned that their government's Justice Department is intervening in the case, claiming that the allegations implicate Trump in his official capacity as president. According to the filing, Barr delegated the authority to determine whether a federal employee's actions fall with the scope of their official duties to James G. Touhey, Jr., director of the torts branch. (Though it's hard to believe this kind of action doesn't happen in Barr's Justice Department without his at least implicit approval and support.)
The filing claimed:
[The] Department of Justice, certified that the defendant employee, President Trump, was acting
within the scope of his office or employment at the time of the incident out of which the claim
arose. The claim asserts defamation based on a written statement issued to the press and two
statements the President made in interviews in June 2019 in which the President vehemently
denied accusations made in Plaintiff’s then-forthcoming book. The President explained that
these accusations were false and that the incident she alleged never happened. Acting pursuant
to 28 C.F.R. § 15.4(a), the Attorney General’s delegate certified that President 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 Plaintiff.
Because Trump was supposedly acting in his official capacity, the department argued, he cannot be sued as a private citizen. The filing says that if the judge accepts these claims, the case should be dismissed.
But many argued that the defense is absurd on its face.
"Hard to imagine a general counsel’s office anywhere in corporate America would argue that an executive sneering 'she’s not my type' about a woman who had accused the executive of rape was part of doing that executive’s job, but that’s what Bill Barr’s DOJ is arguing," said legal analyst Luppe Luppen.
Slate journalist Mark Joseph Stern was even more scathing.
"Not sure if people outside the legal world are grasping what a shocking and profoundly disgusting move this is, an appalling and irredeemable debasement of the Justice Department, a direct threat to the very legitimacy of an agency that is responsible for enforcing federal law," he wrote on Twitter. "Barr stepping in to protect Trump from E. Jean Carroll is banana republican strong man shit of the most odious and corrosive kind. This crosses a rubicon."
CNN Legal Analyst Elie Honig said: "I can't remotely conceive how DOJ can argue with a straight face that it is somehow within the official duties of the president to deny a claim that he committed sexual assault years before he took office."
Overall, the effort seemed doomed to fail, unless the courts decide that nearly anything the president says is within his official duties.
But even if Trump can't prevail in court, the gambit gives him what he always wants: time. It will likely take months to resolve the issues stirred up by the Justice Department, stalling the Carroll case from taking any substantive steps until after the election.
This is how Trump always operates, and it's been amazingly successful. He can often outlast his opponents in legal battles — whether the U.S. Congress, a Manhattan D.A., or an angry contractor he refused to pay — by refusing to ever stop causing trouble. But now, he's has the full force of the federal government to help him.