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After all, the White House has changed hands since the lawsuit was filed, and the Department of Justice – which, under former Attorney General William Barr, widely seen as a staunch ally of Trump, is first arguing for the right to replace himself with Trump as the accused – now led by Merrick Garland.
But for some who have worked at the DOJ, the department’s position is not surprising because they see it as an effort to protect the institution of the presidency rather than an attempt to insulate Trump.
“The department probably held the nose and winced at making the dispute, but they played the long game,” said Michael Weinstein, a former federal prosecutor in Washington, DC. “They don’t want to be seen as pro-Trump, but they look to the protection of federal officials and the President in the future.”
The lawsuit filed by columnist E. Jean Carroll, accused Trump of slandering her when he denied raping her, said he was not his type and claimed he made the allegation to boost sales of his new book.
In fact, in its response filed Monday as part of an appeal to the 2nd U.S. Circuit Court of Appeals, the department left to deny Trump’s response to Carroll, at various points in the filing calling it ” crude, “” disrespectful “and” without question unnecessary and inappropriate. ” (Meanwhile, a spokesman for President Joe Biden said the White House “was not consulted by the DOJ in the decision to file this brief or its contents.”)
But, DOJ lawyers said, Trump is acting “within the scope of the job,” writing that “public speaking and journalism about matters of public concern are undoubtedly part of the job of an elected official. ”
“Courts have thus consistently and repeatedly held that the allegedly destructive implicit statements in that context are within the scope of work of elected officials-including if the statements were prompted by press inquiries about the officer’s private life, ”they wrote.
That position, Weinstein said, is “very important that it trumps – pun intended – the terrible comment he made on this situation.”
“The issue really goes, they’re trying to protect future presidents from removing the protections they already deserve,” he added. “So it’s bad for the current officers, like I said, they’re playing a long game.”
The DOJ’s appeal came in response to an October decision by a district judge that rejected the department’s argument that Trump’s statements regarding Carroll were made within the scope of his work, he writes, “while giving commenting on government operations is part of The United States’ regular business, commenting on allegations of sexual abuse unrelated to government operations is not. “
If the department is allowed to intervene in the case, it is likely to lead to dismissal, because the government itself cannot be charged with defamation.
Others, however, said the DOJ’s position shows that it takes an extreme view of executive authority.
“It shows the Department of Justice – primarily, I’ll take, the career staff – believes in this view of executive authority, that whatever the president does, he does as president. Even talking about an allegation. to rape, ”said Harry Sandick, a former federal prosecutor in New York.
“The argument is not that different from saying anything the President does within the scope of his work,” he said. “Almost saying anything he says or does as president, the DOJ has to come in and defend.”
Carroll’s attorney, Roberta Kaplan, said in a statement following the DOJ’s filing that its position “is not only legally wrong, it’s morally wrong because it would give federal officials a free license to cover up the private sexual misconduct by the public that is brutal to any women who dare to approach. “
Both Carroll’s attorneys and the department’s attorneys requested oral arguments on the appeal, but no dates have been set.
In the meantime, Sandick pointed to an aspect of the Carroll case that he identified as a promising development in relation to the Justice Department’s independence from the White House, a break he suggested from the dynamics of the previous administration.
“It’s definitely positive that they’re not doing what Joe Biden told them.”
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