“In creating and defending a Westfall Act certification … the Department of Justice does not endorse the allegedly illicit conduct or represent that it is actually serving the interests of the United States. Nor does a reviewing court make such findings to uphold the Department’s certificate, ”wrote Acting Head of the Department of Justice’s Civil Department, Brian Boynton, in the new draft.
Boynton also maintained the position taken by the Justice Department on the case last September: that Trump was acting as president when he rejected Carroll’s rape allegations more than two decades ago.
“Talking to the public and the press about matters of public concern is undoubtedly part of the job of an elected public official,” added Boynton. “Courts have therefore consistently and repeatedly ruled that allegedly defamatory statements in this context fall within the scope of the employment of elected public officials – even if the statements were prompted by press inquiries about the public official’s private life.”
The new mandate amounts to a ratification by the Biden administration, which then Attorney General William Barr took last year to take on Trump’s defense on the case – a move that broke the widespread criticism of the dispatch of government attorneys to combat Carroll’s libel suit Trump denied her report on the alleged rape. But the more significant impact of Barr’s move was that if successful, it would almost certainly have broken the litigation.
A Justice Department spokesman declined to comment on which division heads made the decision to stay on course in the Carroll lawsuit, but a White House spokesman said it played no role in the decision, stressing that President Joe Biden set a new standard.
“This is an active legal process and we are referring you to the Justice Department for the court records,” said Andrew Bates, White House spokesman. “The White House has not been consulted by the DOJ on the decision to submit this letter or its contents. While we will not comment on this ongoing legal battle, Americans know well that President Biden and his team have completely different standards than their predecessors, which are considered acceptable statements.
Carroll’s senior attorney Roberta Kaplan said she was concerned about the Biden administration’s decision to back Trump on the case.
“It is appalling that Donald Trump raped E. Jean Carroll in a New York department store many years ago,” said Kaplan. “But it is really shocking that the current Justice Department would allow Donald Trump to lie about it and thus take our client’s day in court. The DOJ’s position is not only legally wrong, but also morally wrong, as it would give federal officials the free license to cover up private sexual misconduct by publicly brutally brutalizing any woman who has the courage to come forward. “
Carroll reacted angrily to the development. “With women standing up across the country holding men accountable for assault – the DOJ is trying to stop me from having the same rights. I am angry! I am offended! ”She said in a statement.
Last October, U.S. District Court judge Lewis Kaplan denied the government’s motion to essentially step into Trump’s role as a defendant in Carroll’s lawsuit.
The Justice Department appealed this decision and asked the 2nd District to overturn Kaplan. In January, the DOJ’s attorneys even gave a short notice to consolidate the government’s position before Biden officials took office.
The brief, due Monday evening, was the Justice Department’s first on the case since Biden’s inauguration.
Judge Kaplan said the acts that sparked the lawsuit – Trump’s most recent denial of Carroll’s 1990s rape allegations – had nothing to do with Trump’s job as president and were not official business. The judge also said the president did not fall under the law of the Justice Department to enter the case.
Allowing the government to play the defendant’s role in the lawsuit would likely have doomed Carroll’s case, as the law does not allow defamation lawsuits against federal officials in their official capacity.
“In this case, Ms. Carroll would have no remedy, even if the President’s statements were false and defamatory,” wrote Kaplan.
Justice Department attorneys pointed to a number of other cases where questions of a personal nature raised with federal officials or statements made by them are considered to be related to their work, but Kaplan said these cases were wrongly decided or not comparable.
“The undisputed facts show that President Trump was not performing any duties that he owed a controversial employer when he made the statements in question,” wrote Kaplan. “His comments related to an alleged sexual assault that took place several decades before he took office, and the allegations are unrelated to official business in the United States. Another conclusion would require the Court of Justice to hold that virtually everything the President does is in the public interest by virtue of his office. “
Kaplan’s 61-page statement allowed Carroll’s lawsuit, which accused Trump of raping her in the dressing room of a Bergdorf Goodman in the 1990s, to advance in federal court with Justice Department attorneys representing Trump. Trump’s personal attorneys also filed a brief motion on Monday, asking the appeals court to reject Kaplan’s decision.
In 2019, Trump sharply denied Carroll’s account several times, including a written statement insisting he never met her despite she has a photo of the two of them together.
“She’s trying to sell a new book – that should show her motivation. It should be sold in the fiction department, ”read a Trump statement. He also denied her account in an exchange with reporters on the South Lawn of the White House before boarding Marine One and in an Oval Office interview with The Hill newspaper.
Trump also stated of Carroll: “She’s not my type.”
The Department of Justice’s new letter begins by stating that Trump’s legal defense should not be seen as a confirmation of his statements.
“Then-President Trump’s response to Ms. Carroll’s grave sexual assault allegations included statements that challenged her credibility in gross and disrespectful terms,” wrote Boynton and other Justice Department attorneys appropriately. Nor is it a question of the veracity of Ms. Carroll’s claims. ”
Carroll filed a lawsuit in New York state court last November alleging Trump’s denials slandered her by damaging her reputation. The case was pending in a state court for almost a year until the Justice Department took over Trump’s defense last September.
The Department sought to replace Trump with the government as a defendant in the case based on two key arguments: that Trump is a federal employee and that his testimony, which denies Carroll’s allegations, was made under his official professional responsibility. These factors would trigger long-standing laws that allow the Justice Department to step in and defend itself against civil disputes.
Justice Department attorneys also pointed to a 2006 DC Circuit Court of Appeals ruling accepting arguments from attorneys for former MP Cass Ballenger (RN.C.) that a press interview he was given about his separation from gave his wife duties within the scope of his official.
At the exchange, Ballenger said one reason for the split was that his wife felt uncomfortable living across from the offices of the Council on American Islamic Relations, which he called “Hezbollah’s donation arm.” The group sued Ballenger for defamation, but the courts ultimately agreed that the congressman was trying to protect his official reputation when he raised the question of his marriage.
Under Barr, the Justice Department proposed his move to effectively end Carroll’s lawsuit.
A then ministry spokesman, Kerri Kupec, tweeted on Sept. 10 that it was a “myth” to claim that the Justice Department’s involvement in the case would put taxpayers “on the hook for funding the defamation lawsuit against Carroll.” .
“Fact: Once the case moves to federal court, it becomes a matter of sovereign immunity,” she wrote. “That is, case over. No case, no costs. “
The 2nd district still has to make oral arguments for the appeal.