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“By certifying and defending Westfall Law … the Department of Justice does not endorse the alleged abusive behavior or claim that it actually promoted the interests of the United States. The Department of Justice’s acting civil division chief, Brian Boynton, wrote in the new submission, and the Court of Review does not take Any such decisions in support of the Ministry’s certification.
Boynton also adhered to the position the Justice Department took in the case last September: that Trump was acting in the course of his official duties as president when he denied the allegations of Carroll’s rape more than two decades ago.
“Speaking to the public and the press on matters of public interest is without doubt part of the elected official’s job,” Boynton added. “Thus, the courts have consistently and repeatedly held that allegedly defamatory statements made in this context fall within the scope of the employment of elected officials—including when such statements were requested through press inquiries about the official’s private life.”
The new brief amounts to the Biden administration’s endorsement of the move last year by then-Attorney General William Barr to take on Trump’s defense in the case — a move that drew widespread criticism over the deployment of government lawyers to fight Carroll’s defamation lawsuit. Trump denied her account of the alleged rape. But the most significant effect of Barr’s move was that, if successful, it would almost certainly preclude litigation.
A Department of Justice spokesperson declined to comment on department leaders who made the decision to stay on track in Carroll’s lawsuit, but a White House spokesperson said it played no role in the decision and emphasized that President Joe Biden had set a new standard.
“This is in an active lawsuit, and so we’re referring you to the Department of Justice regarding the court’s requests,” White House spokesman Andrew Bates said. The Department of Justice did not consult the White House about the decision to provide this summary or its contents. While we will not comment on this ongoing litigation, the American people know very well that President Biden and his team have very different standards from their predecessors regarding what constitutes admissible statements.”
Carroll’s lead attorney, Roberta Kaplan, said she was upset by the Biden administration’s decision to support Trump in the case.
“It is appalling that Donald Trump raped E. Jane Carroll in a New York City department store many years ago,” Kaplan said. “But it is really shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thus depriving our client of her day in court. The position of the Department of Justice is not only legally wrong, it is morally wrong because it would give federal officials free license to cover up Private sexual misconduct by slandering any woman who has the courage to come forward with public brutality.”
Carol reacted angrily to the development. “While women across the country are standing up and holding men accountable for abuse – the Department of Justice is trying to stop me from getting the same right. I’m angry! I’m insulted!” She said in a statement.
Last October, US District Judge Lewis Kaplan rejected the government’s request to intervene primarily in Trump’s shoes as defendant in Carroll’s lawsuit.
The Department of Justice appealed this decision, asking the 2nd Circuit to overrule Kaplan. In January, Justice Department lawyers filed a memo early in an apparent effort to bolster the government’s position before Biden took on their appointments.
The memo, scheduled for Monday night, was the first from the Justice Department in the case since Biden’s inauguration.
Judge Kaplan said the actions that precipitated the lawsuit — Trump’s latest denial of the allegations of Carroll’s rape in the 1990s — are not related to Trump’s job as president and do not amount to official business. The judge also said the president was not covered by the law the Justice Department used to jump the case.
Allowing the government to take on the role of defendant in the lawsuit would likely scuttle Carroll’s case, because the law does not allow defamation lawsuits against federal officials acting in their official capacity.
“In this case, Mrs. Carroll will not be left untreated, even if the President’s statements are false and defamatory,” Kaplan wrote.
Justice Department attorneys have pointed to a series of other cases in which questions of a personal nature raised with federal officials or statements they made were deemed related to their work, but Kaplan said those cases were wrongly decided or not comparable.
“The indisputable facts show that President Trump was not acting in furtherance of any duties owed to any arguable employer when he made the relevant statements,” Kaplan wrote. His comments relate to an alleged sexual assault that occurred several decades before he took office, and these allegations have nothing to do with official business of the United States. To conclude otherwise would require the Court to take the view that nearly everything the President does is ex officio in the public interest.”
Kaplan’s 61-page opinion allowed the lawsuit brought by Carroll, who accused Trump of raping her in Bergdorf Goodman’s locker room in the 1990s, to continue in federal court with Justice Department attorneys representing Trump. Trump’s personal lawyers also gave a briefing Monday, urging the appeals court to reject Kaplan’s decision.
In 2019, Trump issued several sharp denials of Carroll’s account, including a written statement in which he insisted he had never met her, despite having a photo of the two of them together.
“She is trying to sell a new book — that should indicate her motives. It should be sold in the fiction department,” one of Trump’s statement said. He also denied her account in an exchange with reporters at White House South Lawn before boarding Marine One, and in an Oval Office interview with The Hill newspaper.
As Trump declared to Carroll, “She’s not my type.”
The new Justice Department memo begins by declaring that its legal defense of Trump should not be seen as an endorsement of his statements.
Boynton and other Justice Department attorneys wrote: “President Trump’s response at the time to Mrs. Carroll’s serious allegations of sexual assault included statements that questioned their credibility as crude and disrespectful. But this issue is not about whether Mr. Trump’s response was appropriate. Nor does it turn out to be credibility of Mrs. Carroll’s allegations.”
Carroll filed a lawsuit in New York state court last November, alleging that Trump’s denial had damaged her reputation. The case remained pending in state court for about a year until the Justice Department moved to take over Trump’s defense last September.
The department has sought to replace the government with Trump as a defendant in the case based on two central arguments: that Trump is a federal employee, and that his statements denying Carroll’s allegations came as part of his official job responsibilities. These factors will lead to long-standing laws that allow the Department of Justice to intervene and defend against civil lawsuits.
Department of Justice attorneys also noted a 2006 Metropolitan Circuit Court of Appeals decision that accepted arguments from former Representative Attorney Cass Ballinger (RN.C) that his press interview about his separation from his wife was within his official duties.
In the exchange, Ballinger said one reason for the breakup was that his wife was uncomfortable living across the street from the offices of the Council on American-Islamic Relations, which he called “Hezbollah’s fundraising arm.” The group sued Ballinger for defamation, but the courts eventually agreed that the congressman was seeking to preserve his official reputation when he took up the question about his marriage.
Under Barr’s leadership, the Department of Justice bolstered its action as a means of effectively ending Carroll’s lawsuit.
The department’s spokesperson at the time, Kerry Kubik, tweeted on September 10 that it was a “myth” to suggest that the Department of Justice’s involvement in the case would put taxpayers in a bind to fund Carroll’s defamation case.
“Truth: Once a case goes to a feed court, it becomes a sovereign immunity case,” she wrote. “Meaning, case is over. No case, no cost.”
The Second Circuit has not yet determined the oral arguments on the appeal.
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