E Jean Carroll and Donald Trump (l-r: AP Photos by Seth Wenig and Evan Vucci)
With E. Jean Carroll still pursuing a remaining defamation lawsuit against former President Donald Trump, President Joe Biden’s Department of Justice finds itself in a difficult position. For now, the Justice Department appears inclined to remain neutral for as long as it can.
In a recent letter to a federal judge, the DOJ wrote that it “presently lacks evidence” to determine whether to keep supporting Trump under the Westfall Act, the statute governing immunity for government employees.
Both former Attorney General Bill Barr and his successor Merrick Garland previously intervened on Trump’s behalf on a narrow but critical question — whether the former president acted under the scope of his employment when he said Carroll was not his “type.” The fact that Barr and Garland initially answered in the affirmative speaks to an institutional ethos inside the DOJ: Whether run under Democratic or Republican administrations, the Justice Department traditionally supports an expansive view of executive power, legal experts note.
Much has changed, however, since the Barr and Garland Justice Departments first backed Trump. Two appellate courts have clarified under what circumstances Trump would qualify for immunity, and perhaps more importantly, a federal jury found the former president liable for sexually abusing and defaming Carroll, awarding her $5 million.
These promotional photos from “Ask E. Jean” were introduced into evidence during the trial for Carroll v. Trump. (Photos via Kaplan Hecker & Fink LLP)
Should Garland maintain the DOJ’s original position, Carroll’s largely liberal supporters likely will be outraged over the Biden administration’s continued advocacy for the man a jury found likely sexually abused her. If the Justice Department declines to take up the case, such a move may weaken the presidency for Biden and his successors.
The Justice Department has no role in weighing in on Carroll’s underlying claims — now, accepted by a unanimous jury — that Trump sexually abused her in the dressing room of a Bergdorf Goodman in the mid-1990s. Trump’s comments about Carroll after his presidency are also outside the DOJ’s purview.
For former federal prosecutor Mitchell Epner, the DOJ’s most recent position is “very aggressive in refusing to take a position.”
“Now, I understand that some commentators have said, ‘Well, that’s different than their initial position during this litigation,” said Epner, referring to the DOJ’s backpedaling from supporting Trump to remaining undecided.
Epner, however, believes it is far more significant that Senior U.S. District Judge Lewis Kaplan ordered the Justice Department to take a stand — and the DOJ decidedly declined to do so.
“I think that the DOJ wants Judge Kaplan to make a decision on this question without them ever having to take a position,” added Epner, who is now a partner with Rottenberg Lipman Rich PC.
Judge Kaplan previously rejected the DOJ’s motion to intervene on Trump’s behalf, but he was partially reversed by the Second Circuit on one question of immunity. The Second Circuit then asked the top appellate court in Washington, D.C., to resolve the question, but the D.C. Court of Appeals provided legal guidance, without a firm answer. Future litigants thinking of suing U.S. presidents might look closely at both how the judge, and the government, fall down on the issue.
“If they say that the Westfall Act covers Trump, it will anger lots of people,” Epner said. “If they say the Westfall Act doesn’t cover Trump, they will anger other people and create a substantive problem in the future.”
Whatever position the DOJ takes would create its own president, regardless of the judge’s eventual ruling, Epner noted.
Carroll recently amended her initial lawsuit to include Trump’s jeers about her during his CNN town hall. She also ratcheted up her damages request in that case to $10 million.
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