Why on earth is Biden’s DOJ backing Trump in a rape denial case?

Why on earth is Biden’s DOJ backing Trump in a rape denial case?

2021-06-09 14:10:00
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The Biden administration did something many of its supporters had thought unthinkable: it backed the Trump administration in a lawsuit over a rape allegation against Donald Trump. Even the four attorneys from the Department of Justice who… short defense of trump Monday nights seem painfully aware that they are doing something inappropriate.

“The response from then-President Trump to Ms. Carroll's serious allegations of sexual assault included statements that questioned her credibility in terms that were abusive and disrespectful,” the briefing begins. It labels Trump's actions as "unnecessary and inappropriate" and appears at one point to admit that the charges against Trump "raise doubt" about his "fitness for office".

And yet the Biden Justice Department ultimately states that: Carroll v. Trump, a case arising from a rape allegation against the former president, must be dismissed.

A veteran advice columnist, E. Jean Carroll is also one of several women who have credibly accused Trump of sexual assault. Trump denies the allegation, claiming that he has never met Carroll (a photo from 1987 shows them together at a party) and that he could not have raped her because she is "not my type".

Although the corner of the photo doesn't show his face, this 1987 photo still clearly shows Trump (left) with Carroll (second from left). It has been used to dispute Trump's statement that he never met Carroll.
Carol/St. Martin's Press

The carroll lawsuit does not directly relate to the alleged rape. Instead, Carroll sued Trump for defamation after the former president denied the accusation and then made a number of derogatory claims about Carroll, including a claim that Carroll only accused him of sexual assault because she "try to sell a new book.”

DOJ, for its part, is not taking a stance on who is telling the truth in this dispute between Carroll and Trump. Instead, the Department of Justice sets the federal Westfall Act Immunizes Trump from Carroll's lawsuit because Trump's denial of Carroll's charges was made "in the context of his office or employment" as President of the United States.

It's an argument the Justice Department first made when Trump was still in office. Now it has been decided to reaffirm that argument under President Joe Biden.

The DOJ's decision to side with Trump sparked widespread backlash, even from within the White House itself. Although the White House said in a statement that it "has not been consulted by the DOJ regarding the decision to file this letter or its contents" and that it "I will not comment on this pending lawsuit," the statement also stressed that "President Biden and his team" have completely different standards than their predecessors for what qualifies as acceptable statements.”

And yet, as fraught as this particular case is, it's not surprising that the Justice Department is making the arguments it makes on behalf of Trump.

One of the main tasks of the Ministry of Justice is: defend the institutional interests of the presidency, even when those interests conflict with some of the DOJ's other obligations, such as its obligation to defend the constitutionality of federal laws. The Justice Department is also normally reluctant to change its stance on a pending case, so as not to give the judges the impression that the DOJ's arguments are motivated more by politics than by law.

The carroll This case raises very important questions about when the president can be sued by a private individual and what lawsuits are allowed against a president. Carroll has strong legal arguments on its sideBut if she ultimately triumphs, her victory could fundamentally weaken the presidency as an institution — and it could do so when future presidents are indicted for behavior far less abhorrent than Trump's.

carrollIn other words, forced the Justice Department to choose between its institutional responsibilities and avoiding the revulsion of being associated with Trump's behavior. It finally decided that its greater responsibilities should prevail.

The Institutional Role of the Ministry of Justice, Explained

The Department of Justice can be a frustrating institution. It has long operated under a web of informal rules and procedural norms that can operate in counterintuitive ways, often putting DOJ at odds with the interests of the incumbent president or even much of the country.

As former Solicitor General Drew Days explained in a 1996 lecture, the Justice Department has traditionally recognized "a general duty to defend congressional statutes against constitutional challenges," even when the president or the president's party opposes that statute.

But this duty to defend can work in unexpected ways. For example, former Advocate General Paul Clement laid a brilliant trap for the Obama administration.

Clement was the lead attorney who challenged the Affordable Care Act in NFIB v. Sebelius (2012), the landmark Supreme Court decision that upheld most of that law. Much of this challenge has centered on the law's since-revoked individual mandate, requiring most Americans to either purchase health insurance or pay higher taxes. One of Clement's main arguments was that, if Congress had the power to enact such a provision, there would be no limits to his power.

The reason this was such a clever trap is because the Justice Department isn't just tasked with defending a single law. It must defend nearly all laws passed by Congress, including all hypothetical future laws ever enacted. For this reason, attorneys from the Department of Justice are: extremely reluctant to admit that every possible statute is unconstitutional. If the DOJ admits today that Congress couldn't pass a law requiring people to eat broccoli, that same concession could be used against DOJ years later.

So when Judge Anthony Kennedy asked a pretty obvious question to then-Solicitor General Donald Verrilli — could Verrilli"identify for us some limitsabout Congress's ability to regulate? Verrilli gave a hesitant and unsatisfactory answer that did not answer the question.

Even as he pleaded the biggest case of his life, one that posed an existential threat to the Obama administration's signature legislative achievement, Verrilli placed the Justice Department's institutional norms above the interests of Obamacare, President Obama and the millions. Americans who would benefit from that law.

But while the Department of Justice has traditionally taken its duty to defend even hypothetical federal statutes so seriously that it is sometimes willing to pay an extraordinary price to uphold this duty, the duty is not absolute. In his 1996 lecture, Days lists two cases where it is appropriate for the Department of Justice to refuse to defend a federal law.

The first is when the law is "clearly unconstitutional." The second, which is clearly relevant to the carroll case is when the Act on the Institutional Prerogatives of the President comes into effect.

Attorney General Merrick Garland at an event at the White House on May 20, 2021.
Anna Moneymaker/Getty Images

“Attorneys Generals have always sided with the president in disputes over the constitutionality of congressional attempts to limit presidential power,” Days explains.

And there is also a third institutional norm that favors the Justice Department continuing to defend Trump. DOJ is the ultimate replay player in federal lawsuits. It litigates thousands of cases every year. If Justice Department attorneys gain a reputation for changing their arguments every time a new president comes to power, judges across the country may decide those arguments are not credible, and the DOJ risks losing many, many cases.

For this reason, the Department of Justice is typically very reluctant to switch positions in a pending case, even after the presidency has changed hands. The George W. Bush administration did not change its position in a single Supreme Court case already briefed by the Clinton administration, and the Obama administration took the same approach to the Supreme Court. cases notified by the Bush administration.

Admittedly, the Trump Justice Department did not respect many of these standards, and that puts Attorney General Merrick Garland and his subordinates in a difficult position. Biden's Justice Department has left the Trump administration's position in several pending cases, including one in which Trump's DOJ asked the Supreme Court to take down Obamacare.

But that doesn't change the fact that the DOJ jeopardizes its own credibility every time it changes its position on a pending case — even if it changes its position in the carroll case.

The president's institutional prerogatives are at stake in carroll

The Westfall Act protects federal employees from many lawsuits brought against them while “acting in the conduct of (their) office or employment.” When the Westfall Act applies, the individual federal employee originally charged will be dropped from the lawsuit and the United States will be replaced as defendant.

Under a doctrine known as "sovereign immunity," the United States typically has cannot be sued for monetary damages unless it agrees to the lawsuit, and the United States has not agreed to be sued for defamation. So if the Westfall Act applies to Trump's case, the case will most likely be dismissed in its entirety.

At this stage of the carroll lawsuits courts seek to resolve two questions: whether a sitting president counts as a “government employee” under the Westfall Act and whether Trump's statements about Carroll were made in connection with that employment. (A federal district court) ruled against Trump on both questions, but the case is now on appeal.)

The best argument that Trump was not counted as a "government employee" is based on a federal statute that states that the list of such employees "includes" any "federal agency officers or employees". While the president oversees most federal agencies, the White House is not typically considered an "agency."

But this argument is not a slam dunk. In Wilson v. Libby (2008), for example, a federal appeals court applied the Westfall Act to a high-ranking White House staffer — in that case, the vice president's chief of staff. If such a White House staffer can take advantage of the Westfall Act, it's not at all clear why the president can't.

Likewise, it may seem ridiculous to claim that Trump was acting within the scope of his official duties when he denied a rape allegation by a private individual, who accused him of assaulting her long before he became president. But the decision of an appeals court in Council on American Islamic Relations (CAIR) v. Ballenger (2006) cuts in Trump's favor.

Cass Ballenger was a member of Congress who told a reporter that he was separated from his wife because she did not enjoy life in Washington, DC. Still, Ballenger allegedly made defamatory remarks against CAIR, a Muslim civil rights group, claiming that CAIR was the "fundraising arm for Hezbollah."

After CAIR sued Ballenger for defamation, the appeals court dismissed the case under the Westfall Act, arguing that Ballenger's statement was made during his official duties. "A member's ability to do his job as a legislator effectively is linked, as in this case, to the member's relationship with the public and in particular his voters and colleagues in Congress," it reasoned. the court. Thus, there was "a clear connection between the congressman answering a reporter's question about the congressman's personal life and the congressman's ability to carry out his representative responsibilities effectively."

Both Wilson and ballenger were decided by the United States Court of Appeals for the District of Columbia Circuit, and the carroll case is being heard by the Second Circuit. The judges of the second circuit are therefore not bound by these two previous decisions. Nevertheless, the fact that the DC Circuit came to the conclusion in these two cases suggests that Trump has at least plausible legal arguments on his side.

In addition, if the courts concluded that the Westfall Act does not apply to the presidency or that the scope of the president's official duties must be narrowly defined, that would have significant implications for the presidency as an institution.

For example, imagine if a cabal of QAnon supporters decided to bomb President Biden with worthless lawsuits. If Biden cannot invoke the Westfall Act, he may have to hire a private attorney and spend a lot of time defending himself against these lawsuits, potentially distracting him from his official duties.

By supporting Trump in the carroll In other words, the DOJ can try to convince courts not to interpret the Westfall Act in a way that could harm the presidency.

carroll is not the first case where the DOJ has sided with a president accused of sexual misconduct. In Clinton v. Jones (1997), Paula Jones sued President Bill Clinton for sexual harassment. Although Clinton was represented by a private attorney, the Justice Department also sided with Clinton in this case, arguing that allowing private cases against a sitting president "poses serious risks to the institution of the presidency entailed”.

Paula Jones (center) has sued then-President Clinton for sexual harassment. The Justice Department sided with Clinton.
Luke Frazza/AFP via Getty Images

As in carroll, the Justice Department felt it had a duty to defend the presidency as an institution. And so it backed Clinton in an effort to protect the president from lawsuits that could distract him from his official duties.

All of this is a long way of saying that the Justice Department's decision to support Trump in carroll is consistent with years of DOJ practice. The move of the department carroll very similar to his actions in the Jones case.

However, Trump may not want to take comfort in this fact. Clinton lost his case in a unanimous Supreme Court decision.


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