“In making and defending a Westfall Act certification … the Department of Justice is not endorsing the allegedly tortious conduct or representing that it actually furthered the interests of the United States. Nor is a reviewing court making any such determinations in upholding the Department’s certification,” the acting head of the Justice Department’s Civil Division, Brian Boynton, wrote in the new submission.
Boynton also adhered to the stance the Justice Department adopted in the case last September: that Trump was acting in the course of his official duties as president when he denied Carroll’s rape allegations from more than two decades ago.
“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” Boynton added. “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 new brief amounts to a Biden administration ratification of the move that then-Attorney General William Barr made last year to assume Trump’s defense in the case — a move that drew widespread criticism over the deployment of government attorneys to fight the defamation suit Carroll filed after Trump denied her account of the alleged rape. But the more significant impact of Barr’s move was that, if successful, it would almost certainly have scuttled the litigation.
A Justice Department spokesperson declined to comment on which department leaders made the decision to stay the course in the Carroll suit, but a spokesperson for the White House said it played no role in the decision and emphasized that President Joe Biden had set a new standard.
“This is in active litigation, and so we refer you to the Department of Justice concerning its court filings,” White House spokesperson Andrew Bates said. “The White House was not consulted by DOJ on the decision to file this brief or its contents. 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.”
Carroll’s lead attorney, Roberta Kaplan, said she was disturbed by the Biden administration’s decision to back Trump in the case.
“It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago,” Kaplan said. “But it is truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thereby depriving our client of her day in court. 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.”
Carroll responded angrily to the development. “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!” she said in a statement.
Last October, U.S. District Court Judge Lewis Kaplan rejected the government’s motion to essentially step into Trump’s shoes as the defendant in Carroll’s suit.
The Justice Department appealed that decision, asking the 2nd Circuit to overrule Kaplan. In January, DOJ lawyers even filed a brief early in an apparent bid to cement the government’s position before Biden appointees took over.
The brief due on Monday night was the first from the Justice Department in the case since Biden’s inauguration.
Judge Kaplan said the actions that precipitated the suit — Trump’s recent denials of Carroll’s rape claims from the 1990s — were not related to Trump’s job as president and did not amount to official business. The judge also said the president was not covered by the law the Justice Department wielded to jump into the case.
Allowing the government to assume the role of defendant in the suit likely would have doomed Carroll’s case, since the law does not allow libel claims against federal officials acting in their official capacity.
“In that event, Ms. Carroll would be left with no remedy, even if the president’s statements were false and defamatory,” Kaplan wrote.
Justice Department lawyers 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 undisputed facts demonstrate that President Trump was not acting in furtherance of any duties owed to any arguable employer when he made the statements at issue,” Kaplan wrote. “His comments concerned an alleged sexual assault that took place several decades before he took office, and the allegations have no relationship to the official business of the United States. To conclude otherwise would require the Court to adopt a view that virtually everything the president does is within the public interest by virtue of his office.”
Kaplan’s 61-page opinion permitted the suit brought by Carroll, who has accused Trump of raping her in the dressing room of a Bergdorf Goodman in the 1990s, to continue in federal court with Justice Department attorneys representing Trump. Trump’s personal lawyers also filed a brief 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’d never met her, despite a photo she has of the two together.
“She is trying to sell a new book — that should indicate her motivation. It should be sold in the fiction section,” one Trump statement said. He also denied her account in an exchange with reporters on the White House South Lawn before boarding Marine One, and in an Oval Office interview with The Hill newspaper.
Trump also declared of Carroll: “She’s not my type.”
The Justice Department’s new brief opens by declaring that its legal defense of Trump should not be seen as an endorsement of his statements.
“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,” Boynton and other DOJ lawyers wrote. “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.”
Carroll filed suit in a New York state court last November, contending that Trump’s denials libeled her by damaging her reputation. The case was pending in state court for nearly a year until the Justice Department moved to assume Trump’s defense last September.
The department sought to have the government substituted for Trump as defendant in the case based on two central arguments: that Trump is a federal employee, and that his statements denying Carroll’s allegations were made as part of his official job responsibilities. Those factors would trigger longstanding statutes that permit the Justice Department to intervene and defend against civil litigation.
Justice Department attorneys also pointed to a 2006 D.C. Circuit Court of Appeals decision that accepted arguments from lawyers for former Rep. Cass Ballenger (R-N.C.) that a press interview he gave about his separation from his wife was within the scope of his official duties.
In the exchange, Ballenger said one reason for the separation was that his wife was uncomfortable living across the street from the offices of the Council on American Islamic Relations, which he called “the fundraising arm for Hezbollah.” The group sued Ballenger for slander, but the courts ultimately agreed that the congressman was seeking to preserve his official reputation when he addressed the question about his marriage.
Under Barr, the Justice Department pitched its move as a way to effectively end Carroll’s lawsuit.
A department spokesperson at the time, Kerri Kupec, tweeted on Sept. 10 that it was a “myth” to suggest that the Justice Department’s involvement in the case would put taxpayers “on the hook for funding the Carroll defamation lawsuit.”
“Fact: Once the case shifts to fed court, it becomes an issue of sovereign immunity,” she wrote. “Meaning, case over. No case, no cost.”
The 2nd Circuit has yet to schedule oral arguments on the appeal.