DOJ Attempts to Assume the Defence in Trump Defamation Lawsuit
On Sept. 8, the DOJ announced that it was taking over from Trump’s lawyers in a defamation lawsuit brought against Trump by E. Jean Carroll. Carroll is an American journalist who claimed in her memoir, “What do we need Men For?,” that Trump raped her in a Manhattan department store sometime between 1995 and 1996. Trump denied her claims, stating, “I have no idea who this woman is. This is a woman who's also accused other men of things, as you know. It is a totally false accusation." Based on this denial, Carroll filed a defamation lawsuit against Trump.
The DOJ’s announcement comes after a New York judge approved for the case to proceed. It also coincides with Carroll seeking Trump’s DNA sample to compare with a DNA sample found on her dress. The DOJ argues that their involvement in the case is justified because Trump’s denial happened under the scope of Trump’s presidency. In their argument, the DOJ cites the Westfall Act. The Westfall Act gives federal employees complete immunity from common law tort claims, such as defamation, when they arise from acts done while they are performing their official duty. When asked about his request for the DOJ to assume control of the defense, Attorney General Barr stated, “This was a normal application of the law. The law is clear, it is done frequently, and the little tempest that's going on is largely because of the bizarre political environment in which we live and … and I'll just leave it at that.” Still, many legal experts say this assertion is flimsy and unusual. Former U.S. federal prosecuter and CNN legal analyst Elie Honig called the assertions by Barr a “wild stretch” and stated "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.” Additionally, many of Barr’s critics argue that this is another example of the DOJ acting as Trump’s personal lawyers. Caroll herself responded to the DOJ’s announcement by tweeting “TRUMP HURLS BILL BARR AT ME,” signifying her concern that Barr and the DOJ are acting like Trump’s personal lawyers. If the DOJ is allowed to take the defense of the defamation case against Trump, then the lawsuit would no longer be able to proceed. This is because the defendant would no longer be Trump, but instead the U.S. government, which cannot be sued for defamation. Now, a judge must decide if the DOJ’s request is legal.
The DOJ’s request is another example of the department acting as Trump’s personal lawyer. The idea that Trump denying a sexual assault in interviews and tweets while simultaneously holding presidential office falls under the official duties of the the presidency is absurd. A test can be given to tell if the president was acting in his official duties when he denied Carroll’s allegations, answered by a question: was Trump acting under his official duties as president when he denied the allegation? The answer is a resounding no. Nowhere in the president’s official duties does it say that Trump must protect his image. Presidents are not elected to protect themselves but instead to protect the American people. In fact, one must simply look at the requirement that political campaigns must be separated from political office to understand that anything to do with personal image is unrelated to governmental duties. Therefore, the claim by the DOJ that Trump’s response to Caroll’s allegations fall under the purview of Trump’s presidency has no legal standing. I believe the DOJ is well aware of all of this.
The question now becomes, why is the DOJ trying to take the case now? I believe that it is because Trump is worried about the results of the DNA comparison. If Trump’s DNA is found to match with the stain on the dress, it would destroy his political career. This would not only prove Trump was lying when he claimed he had never met Caroll, but it would also help prove Caroll’s claim that Trump raped her. While this may not sway some of Trump’s ardent supporters, it could help convince the small amount of undecided voters that Trump has committed rape, leading them to vote for Biden. It would also embolden all of Trump’s other accusers. If Trump’s other accusers have solid evidence to demonstrate a pattern of behavior, they will become inspired to share their stories and potentially file their own lawsuits. However, I am unsure if Trump could be prosecuted criminally after his presidency due to the statute of limitations. Nonetheless, he could be open to a flurry of expensive civil lawsuits.
It is evident that if Trump’s DNA sample matches it could have disastrous consequences. In assuming that the allegations are true, it would be imperative for Trump that he stop any attempt from the courts to get his DNA sample. The DOJ taking control of the defense would accomplish this, since it would end the lawsuit. Moreover, the DOJ’s request also could be used as a delay tactic. Even if the DOJ fails to win the request, it could allow Trump to win the presidency before he has to provide his DNA sample to the court.