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Justice surprises, dismays with Trump defense

The Department of Justice’s (DOJ) defense of former President TrumpDonald TrumpBiden prepares to confront Putin Biden aims to bolster troubled Turkey ties in first Erdoğan meeting Senate investigation of insurrection falls short MORE against a defamation suit stemming from a rape allegation has surprised and dismayed critics who had spoken out against the previous administration's use of government lawyers to represent him.

On Monday night, the Justice Department filed a brief with a federal appeals court backing the Trump administration’s argument that the former president’s comments about the writer E. Jean Carroll were made in the context of his official duties and thus he should be represented by government lawyers.

Because federal law bars defamation suits against government officials, Carroll’s suit will likely be dismissed if the DOJ prevails on the legal question, placing the new administration in the awkward position of defending Trump against his alleged rape victim.

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The agency’s effort to continue to defend Trump in the case came to the surprise and dismay of many who had been outraged that the previous administration intervened on Trump’s behalf in the defamation suit in the first place.

Noah Bookbinder, the executive director of the liberal watchdog group Citizens for Responsibility and Ethics in Washington, spoke out against the DOJ’s effort to represent Trump in the case last year and told The Hill he had hoped “there would be a reckoning with the ways in which the Justice Department was used and abused for the for the benefit of the president of the time.”

“I think they are trying to make the best decision here, I just think they're failing,” said Bookbinder, who worked at the DOJ for six years prosecuting public corruption cases. “This was an instance where it would have made sense to have tough discussions in the Justice Department and say, 'Hey, if we let this go, if we don't defend this, it might actually weaken our litigation position in the future, but it is in the interest of establishing some limits on abuses of executive authority and that's a thing that is really important for democracy.’”

Carroll revealed her allegations in a June 2019 New York Magazine article, saying that Trump had raped her in a New York City department store dressing room in the ’90s.

In comments to reporters and public statements over the following days, Trump denied the allegations, accused Carroll of manufacturing them for political reasons, claimed he had never met her and told The Hill in an interview that “she’s not my type.”

Carroll filed her lawsuit in November of that year in a local New York court, arguing that Trump’s remarks were defamatory.

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Roberta Kaplan, Carroll’s attorney, blasted the Justice Department over its arguments.

“It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago,” Kaplan said in an emailed statement. “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.”

The Justice Department did not respond when asked for comment.

The White House distanced itself from the DOJ’s position in the case, saying on Tuesday that it had not consulted with the department on its legal arguments.

"The president strongly believes in the independence of the Department of Justice,” Jen PsakiJen PsakiBiden prepares to confront Putin Biden aims to bolster troubled Turkey ties in first Erdoğan meeting Five states have yet to administer one dose of vaccine to half their populations MORE, the White House press secretary, told reporters. “The White House was not consulted by the Department of Justice on the decision to file this brief or its contents.”

In the brief, Justice Department lawyers said they did not endorse Trump’s comments about Carroll but that there are important issues at stake in the case given the implications of how federal judges might interpret the laws around legal protections for government officials.

“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 reads. “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 case instead addresses whether the Federal Tort Claims Act (FTCA) and the Westfall Act apply to the President and the scope of their application—questions that implicate the institutional interests of the federal government.”

The White House’s response to the filing indicates that the administration is trying to reassert DOJ independence following the Trump era. But that stance is unlikely to appease critics who see the move, along with other instances of continuity in cases inherited from the previous administration, as the current Justice Department papering over or even furthering past abuses.

Psaki said that Biden has been clear "about his view about his predecessor’s comments, about his predecessor’s language and about his predecessor’s approach and his engagement" toward the agency.

Biden had criticized the DOJ’s involvement in the case while on the campaign trail last year as part of his broader attacks on what he called the Trump administration’s weaponization of the department to advance the former president’s personal and political interests.

In 2020, the DOJ stoked outrage by intervening in the case, getting it transferred to federal court and then moving to represent Trump even though the suit was filed against him in his personal capacity.

Trump’s critics at the time saw the move as another example of the administration’s erosion of the DOJ’s independence that would have given the president a taxpayer-funded legal defense against a woman who had accused him of rape.

District Judge Lewis Kaplan, a Clinton appointee, blocked the DOJ’s effort last year, prompting the Trump administration to appeal to the 2nd Circuit Court of Appeals.

A spokesperson for Trump did not immediately respond to a request for comment.

In her own statement, Carroll said Tuesday she was angered over the Biden administration’s continued involvement in the case.

"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,” she said. “I am angry! I am offended! I and my attorneys Robbie Kaplan and Joshua Matz are confident that Judge Kaplan's decision will be affirmed by the Second Circuit."

The filing on Monday was signed by Brian Boynton, the acting head of the department’s civil division, indicating that the move was likely discussed and approved at the highest levels of the DOJ.

Barbara McQuade, a former federal prosecutor who spoke out against the Trump administration inserting itself in the case, said that she believes the current DOJ is acting in good faith but was disappointed that the government is continuing to defend Trump with what she believes is an unsound legal argument.

“I am surprised because it seems like a stretch in the law,” McQuade wrote in an email to The Hill. “Independence and non-partisanship are essential to the credibility of DOJ, but this position seems to take the duty to defend institutions too far. The ultimate duty of DOJ is to defend the rule of law, and I think they got this one wrong.”

“While I believe that DOJ is acting in good faith, it may be trying too hard to prove to the public that it is acting in a non-partisan way,” she said. “It is like the dad who coaches his own child in little league, and benches him even though he is the best player. The dad is so concerned about showing how fair he is that he causes his team to lose the game.”