DOJ: Trump acted in scope of office while being ‘disrespectful’ to rape accuser

Photo by Samuel Corum/Getty Images

The Justice Department seeks to continue a Barr-led legal effort to defend former President Trump in a defamation lawsuit brought forward by E. Jean Carroll, one of Trump’s rape accusers.

Carroll, in 2019, accused Trump of forcing her against the wall in a department store dressing room in the mid-’90s. Carroll wrote in The Cut that the former president pulled down her tights and penetrated her with his fingers and genitalia before she eventually broke free and fled from the store on Manhattan’s Fifth Avenue. She claims she hasn’t had sex since.

Trump’s response to the woman’s harrowing allegations, the topic of her defamation lawsuit, came in the form of an interview with The Hill from behind the Resolute Desk in the Oval Office.

“Number one, she’s not my type,” Trump said. “Number two, it never happened. It never happened, OK?”

The President would double down on his assertion days later.

“Totally lying. I don’t know anything about her,” he said. “I know nothing about this woman. I know nothing about her. She is — it’s just a terrible thing that people can make statements like that.”

US lawyers argued in a brief filed Monday that Trump’s conduct towards Carroll, while morally reprehensible, could not be charged to him directly because he made the comments while working in an official capacity as president.

“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,” the brief says. “But this case does not concern whether Mr. Trump’s response was appropriate. Nor does it turn on the truthfulness of Ms. Carroll’s allegations.”

The document was filed as an appeal to a federal judge’s ruling in October that Trump can’t use an employee-protection law to shield himself from being sued individually for something he does within the scope of his employment.

Former Attorney General Barr’s intervention in the lawsuit was criticized by then-candidate Joe Biden, who the current Justice Department operates independently of, on the campaign trail. The Justice Department’s decision to appeal the ruling is consistent with President Biden’s campaign promise that the department wouldn’t be controlled by the president — a line that was blurred thanks to Trump and Barr.

The lawsuit, Biden DOJ officials say, is instead focused on the scope of the application of a federal civil claim to the sitting president. They say the suit raises questions as to whether the actions of a president fall in or out of the scope of his office or employment, as well as whether high-ranking government officials, when addressing serious allegations, act within the scope of their employment.

The Justice Department said that, under the President’s classification as an “employee of the government” under the FTCA and Westfall acts, no statement made by a sitting president could be considered a tort liability in the United States. They argue that a president’s comments are a specific part of his job even if they concern personal matters.

“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” they wrote. “Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials’ employment — including when the statements were prompted by press inquiries about the official’s private life.”

The department said Trump’s comments concerning Carroll’s opinions and motives for her allegation were “without question unnecessary and inappropriate” but simply pertained to the denial of wrongdoing.

“Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office,” Justice Department lawyers continued in the brief. “Even reprehensible conduct … can fall within the scope of employment,”

On the contrary, Carroll’s attorney argues that the president can’t be considered an ‘officer of a federal agency’ because that term only encapsulates “Executive Departments,” which she says are 15 cabinet-level agencies operating under the president.

“The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward,” Roberta Kaplan, Carroll’s attorney, said in a statement. “Calling a woman you sexually assaulted a ‘liar,’ a ‘slut,’ or ‘not my type,’ as Donald Trump did here, is not the official act of an American president.”

Carroll herself echoed her lawyer’s take, remarking: “As women across the country are standing up and holding men accountable for assault — the DOJ is trying to stop me from having that same right. I am angry! I am offended!”

Marc Kasowitz, a personal lawyer for Trump, filed arguments that backed the DOJ’s position, claiming there’s a “wide gulf between Carroll’s rhetoric and reality.”

“This is not a case where a President, without prompting, randomly targeted a private citizen,” Kasowitz wrote. “Rather, Carroll, a public figure, accused Trump of terrible misconduct twenty years earlier in a book and magazine article for which she sought maximum publicity. He denied her accusations in precisely the manner she expected. A short time later, she sued him for defamation. Carroll had no intention or expectation that this would be a private, personal dispute, and it was not.”

White House deputy press secretary Andrew Bates told media outlets that the White House wasn’t part of the Justice Department’s decision in the case.

“The White House was not consulted by DOJ on the decision to file this brief or its contents,” he said. “While we are not going to comment on this ongoing litigation, the American people know well that President Biden and his team have utterly different standards from their predecessors for what qualify as acceptable statements.”



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