The Department of Justice (DOJ) moved yesterday to take over the representation in the defamation suit brought by author E. Jean Carroll, who has accused President Donald Trump of raping her. I strongly disagree with the use of the Justice Department in such circumstances. However, the court may have little choice to grant the motion. This is a case where the legal answer is not the right answer.
The brief motion filed with the U.S. District Court for the Southern District of New York relies on the Federal Tort Claims Act to seek to take over the litigation. It is based on attenuated logic that, while the alleged rape occurred 30 years ago, Trump’s denial (which is the basis for the defamation claim” occurred while he was president. As a result, the Justice Department is claiming that the comment was made as part of his official duties and thus it should be defended by the Justice Department, and not private counsel.
In my view, the framing of the comment as an official act is wrong and this move undermines the integrity of the Justice Department. Barr defended the decision. There is case law supporting the position. It has been used by other presidents. I strongly disagree with the request, which presumably came from the White House. That is where the primary blame should fall. From the first year of the Administration, I have been critical of the President’s blurring the lines between his private and official legal cases. This has been a long pending lawsuit handled by private counsel. It should have remained so. Indeed, Trump has the advantage in the litigation, as discussed below.
Barr could reasonably view this as a nondiscretionary act on his part once the request is made, particularly given past invocations during the Bush and Obama Administrations. However, I would argue that there is discretion here. The issue is the meaning of “while acting within the scope of his office or employment.” The case law has added a broad interpretation to the mandatory language of the Act. This decision is consistent with that case law. I believe that the Act should be amended to exclude clearly personal matters like this one.
Nevertheless, the correct decision under the law would be to grant this ill-conceived motion. The reason is the Westfall Act, 28 U.S.C. § 2679(b)(1), which states:
“(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place in which the action or proceeding is pending. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.”
I do not see the room for judicial discretion in this “shall” provision. It was written to give entire discretion to the Justice Department in certifying such cases.
There is an irony here for critics however in opposing this motion. For years, critics have argued in federal court that tweets and comments by the President in areas like immigration should be treated as official statements. Indeed, the Ninth Circuit adopted such an approach in prior litigation.
However, this is clearly a personal matter and not a comment on any government policy or action. It should not be a matter for the Justice Department. None of this gives credence to the underlying claim. This would be a very difficult case to prove. Carrol is essentially suing over what is called an “exculpatory no” statement in criminal law. Trump had every right to deny the underlying rape, but he did so as an individual, not as the president.