After four years of irresponsible and damaging politicization of the Department of Justice by former Attorney General Bill Barr and others at Donald Trump’s behest, Attorney General Merrick Garland is making good on President Joe Biden’s campaign promise to return to the theme of independence in DOJ’s execution of the federal criminal laws. But it’s not without a political cost. Garland’s decision to defend Trump in a defamation suit arising from his public attacks on one of his many alleged sexual assault victims is raising eyebrows.
Garland had the discretion to withdraw from the case, and arguably should have. But as he testified at a Senate Appropriations Subcommittee hearing on Wednesday, “The fundamental rule of a democracy, or a republic, or a republican democracy, and the essence of the rule of law . . . is that like case be treated alike, that there not be one rule for Democrats and another for Republicans, that there not be one rule for friends and another for foes.” He is thinking about the impact on the law for all presidents and executive branch employees—not about accountability for Trump’s bad acts in particular.
While in office, former President Trump was sued by E. Jean Carroll, a columnist for Elle magazine, for defamation in connection with his public denial that he ever met her—let alone raped her in a Bergdorf Goodman dressing room, which she alleges happened in late 1995 or early 1996. Worse, Trump said that “she’s not my type” and accused her of lying. The lawsuit began in New York State court, producing a ruling in August 2020 that Trump was not immune from civil suits by virtue of his office. Before discovery could begin, Barr intervened on Trump’s behalf and removed the case to federal court.
What began as a private lawsuit defended by private lawyers morphed into a suit against the United States government itself under what’s known as the Federal Tort Claims Act. People cannot sue the government without what’s called a waiver of sovereign immunity—i.e., the government must agree to be sued. For torts like negligence, when the claim is made against an “employee of the government while acting within the scope of his office or employment,” the FTCA allows plaintiffs to get money from the government for certain torts committed by its employees.
Procedurally, the government must “certify” that an employee was acting within the scope of his employment, which it did for Trump here. (Note that it’s Trump’s statements about Carroll that count for purposes of the suit—not the alleged rape, which she claims happened when he was a private citizen.) When the government certifies, it effectively steps into the shoes of the individual defendant—here, Donald Trump. Hence, by virtue of this maneuver, Carroll is now suing the U.S. government, not Trump himself.
But because the FTCA’s waiver of sovereign immunity does not extend to claims “arising out of” slander or libel, like defamation, if DOJ wins this appeal, Carroll’s defamation suit likely goes away. (The statute of limitations on a criminal rape case has expired, so this could be the end of the road when it comes to accountability for what happened to her.) As a matter of fairness and justice, this is an outrage. But that’s not what Garland is worrying about.
Carroll is making two arguments. She claims that presidents are not government employees in the first place, so the FTCA doesn’t apply. Second, she is claiming that even if it does apply, Trump’s statements here fall outside the boundaries of presidential conduct.
The lower federal judge accepted Carroll’s arguments, rejecting the government’s claim that Trump was acting within the scope of his office when he made the statements about alleged events with a private person while he was a private citizen. That ruling is on appeal to the Second Circuit. Rather than unwinding Barr’s rare move to intervene, Garland picked up the baton on Trump’s behalf.
On appeal, DOJ concedes that “speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” a phrase that seems clumsy in its overbreadth. But the question here is whether the government—and not the individual—defends the lawsuit, not whether what the employee did was bad. So if a postal truck rear-ends your car while delivering mail, the government will defend the case rather than leaving the driver of the truck to fend for herself. Likewise, the U.S. Court of Appeals for the D.C. Circuit held that Hillary Clinton’s use of a private email server to convey sensitive information in connection with the attack on the diplomatic compound in Benghazi was within the scope her employment as secretary of state, as well.
It’s understandably shocking and even appalling to some that taxpayer dollars are going to squashing a lawsuit regarding one of Trump’s many insulting remarks about women—particularly in connection with an alleged sexual assault. In the brief filed in the Second Circuit by Garland’s DOJ, the government admits that “Then-President Trump’s response to Ms. Carroll’s serious allegations of sexual assault included statements that questioned her credibility in terms that were crude and disrespectful.” But Garland has his eye here on the precedent this case could set—not on the merits of how Trump himself behaved.
Whether Garland would have taken this step initially is impossible to know, but now that Barr set the stage that produced a lower court decision excising the president from the scope of the FTCA and holding that allegedly defamatory remarks about personal events are outside the scope of the president’s employment, perhaps Garland wagered that he needs to step in and steer the ship that’s shaping the law for future presidents.
Unfortunately, as lawyers say, bad facts often create bad precedent. And with Trump, there are too many bad facts to enumerate.