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WASHINGTON, June 22 (Reuters) – Former U.S. President Donald Trump may have an unlikely ally to defend him against the lawsuits he accuses of upsetting the U.S. Capitol: President Joe Bidens Justice Department.
The Biden administration paved the way for that possibility, constitutional scholars and lawyers in the cases said, by arguing in an irrelevant defamation case against Trump that the presidents widely satisfied immunity for their comments while in office – and the right to a defense by government lawyers. The Bidens Department of Justice used that justification in a surprise decision this month to continue defending Trump in the case filed by E. Jean Carroll, who Trump denied raping him 25 years ago and then lied about here while in the office, he is humiliated.
That decision confirms the position the department has taken under the Trump administration. And it has profound implications for many ongoing lawsuits, including one filed by two U.S. Capitol Police officers seeking to hold Trump accountable for the damages they suffered defending the building in the Jan. 6 attack.
Attorney Philip Andonian said he fears the Department of Justice, under the same legal justification, will also defend Trump in the case Andonian is pursuing on behalf of U.S. Representative Eric Swalwell, a California Democrat. . Swalwell accused Trump of inciting deadly unrest on Jan. 6 in an effort to stop Congress from fulfilling its duty to prove Biden as the election winner. Andonian called the logic behind the departments ’decision to defend Trump against Carrolls’ slander.
The Justice Department appears to have no immunity limit for a sitting president’s speech on anything considered public concern, Andonian said.
The Justice Department declined to comment on whether it would use the same argument as the basis for intervening in other lawsuits Trump faces. The White House did not respond to a request for comment but previously said it had no role in the departments ’decision on whether to defend Trump in the Carroll case or otherwise.
Trump faces more than a dozen active investigations and lawsuits involving a variety of matters, including allegations of sexual misconduct, financial disputes and government investigations into his dealings with the business and his efforts to overthrow the 2020 election. But the Justice Department’s revelation of presidential safety in Carroll’s case would be relevant only to other cases involving his statements or actions while in office.
The Justice Department laid out its justification for defending Trump in a brief statement on June 7 in the Carroll case. After Carroll, a former magazine writer, wrote in 2019 that Trump raped her, Trump – while in office – accused her of lying and said he didn’t know her. Carroll was among nearly two dozen women who accused Trump of sexual misconduct. The brief contention that Trump, like any president, is covered by federal laws, including the Westfall Act, which protects federal employees from not being prosecuted for actions taken as part of their jobs.
Although Trump’s remarks are without question unnecessary and inappropriate, the brief said, he was acting within the scope of his office when he did so. Elected officials can and often should address allegations that raise skepticism about their suitability for office, the argument said. Speaking to the public and press about matters of public concern is undoubtedly part of the job of an elected official.
TITANIC LEGAL BLUNDER
A prominent constitutional scholar describes the position of the departments in the Carroll case as a mistake that is difficult to remove.
It’s very difficult for the Justice Department to change course today, said Laurence Tribe, a Harvard University professor of constitutional law and a frequent critic of Trump. The Titanic is dedicated to the iceberg.
The tribe and other critics of the departments ’position say it fails to draw a clear distinction between a president’s official conduct and matters that are clearly not in the office’s duties. When a president says or does something illegal, they say, it does not guarantee the taxpayer defense of government lawyers.
The Tribe served as a legal adviser for Trump’s second House of Representatives impeachment, in which the former president was accused – but later acquitted – of trying to overturn legitimate election results to retain presidential power. The Tribe said it was presumptuous for the department to defend Trump against lawsuits related to the unrest at the U.S. Capitol on the basis that a violent uprising began, as charged in the lawsuits, fell within the job description of the president.
Trump has denied any responsibility for the violence at the Capitol. His lawyers say he makes political arguments, is protected by the First Amendment, and does not encourage people to riot.
Jesse Binnall – a private attorney defending Trump in the Capitol Police case, the Swalwell case and at least two other ongoing lawsuits – declined to comment on whether he would ask for departmental intervention on Trump’s behalf in any of the that thing. Such a request would require the Department of Justice to take an official position.
Binnall cited the Justice Department’s safety argument in briefs filed for some of those cases, but so far he has not directly requested the department to intervene in any of them.
If the Justice Department ends up defending Trump in any of the other cases pending against him, he can still keep his private counsel, allowing him to protect his own interests if they distance themselves from governments.
HISTORY OF GENERAL SOCIETY
While Trump was president, the Justice Department argued the case with Carroll giving him extensive safety law against his lawsuit, adding that he was protected because he talked about him in his role as president. A federal district court rejected that position in October, and the department filed an appeal in the sinking days of Trumps presidency. If the Justice Department wins the appeal, it will effectively sue Carrolls against Trump.
Carrolls attorney Roberta A. Kaplan, said it was surprising that the department would keep the same argument under U.S. Attorney Merrick Garland, whom Biden appointed after the appeal was filed.
In testimony before Congress, Garland defended the position by saying the duty has a duty to follow the law rather than protect any administration. Sometimes it means we have to make a decision about legislation that we never made and that we strongly agree as a matter of policy, he said.
The Department of Justice’s appeal in Carroll’s case is pending before the 2nd U.S. Circuit Court of Appeals. The outcome could have implications for at least four other federal lawsuits pending against Trump. Three of them seek to hold Trump accountable for remarks in a speech on Jan. 6 shortly before the Capitol riot. They include the case filed by the injured Capitol Police officers, as well as the cases filed by Representative Swalwell and U.S. Representative Bennie Thompson, a Mississippi Democrat. Thompson said Trump violated federal law by inciting his supporters to block Congress from performing official duties.
The fourth lawsuit was filed by the Michigan Welfare Rights Organization, an advocacy group for low-income people. The lawsuit claims Trump disqualified Black voters by trying to overturn the results in Detroit, a majority Black city, after the 2020 election.
Andonian, the attorney in Congressman Swalwell’s lawsuit against Trump, said he fully hopes that Trump’s lawyers will now use the Justice Department’s reasoning to argue that the former president is talking about things that have been discussed. public concern in his speech in January Trump that day continued his false claim that the election was stolen from him through voter fraud; criticized Vice President Mike Pence for refusing to stop Congress from confirming Bidens ’victory; and called on his supporters to march on the Capitol.
Andonian and other lawyers argue the legal difference between Trump’s attack on Carroll and his rhetorical speeches seeking to reverse his election loss.
Ben Berwick, an attorney representing police officers at the Capitol, said Trumps appearance at the gathering on Jan. 6 before the Capitol uprising culminated in a campaign rally unrelated to his official duty. . That was a different setting, he said, than the presidential news conference where Trump made statements about Carroll.
He is effectively acting as a candidate, Berwick said. He has no official role in the certification of electoral votes.
Joseph Sellers, an attorney representing Congressman Thompson in his lawsuit against Trump, agreed that Trump went well beyond the cover of presidential safety.
I don’t think anyone would think within the scope of presidents a legitimate duty to encourage people to interfere with the functioning of another branch of government, Sellers said. He promotes an uprising and a riot.
Reporting by Peter Eisler and Joseph Tanfani; additional reporting by Disha Raychaudhuri and Rick Linsk; edited by Jason Szep and Brian Thevenot.
Our Standards: The Principles of Trust at Thomson Reuters.
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