Merrick Garland Shouldn't Defend Trump in Defamation Suit

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President Joe Biden’s Department of Justice has doubled down on defending former President Donald Trump from E. Jean Carroll’s defamation suit. The department’s decision is flat wrong. It serves no sound legal or institutional purpose for the department to defend Trump in this situation.

In case it hasn’t been at the top of your mind, the case arose from Carroll’s allegation that Trump raped her, long before he became president. While president, Trump responded to Carroll’s allegations by saying that he didn’t know her, that she was “not my type,” and that the incident never happened. He also said that she was lying for personal gain and that she was trying to “get publicity” or “sell a book.” In response, Carroll sued Trump in state court for defamation.

Under the 1997 Clinton v. Jones precedent, a sitting president may be sued civilly for wrongs he has committed in his personal capacity. But Barr’s Justice Department intervened in the lawsuit, arguing that Trump was acting in his official capacity as president when he made the comments about Carroll. If that intervention were to succeed, the case would shift to federal court and become a suit against the government, not against Trump personally.

At the time Barr intervened, it was clear how bad Barr’s decision was. Trump wasn’t acting in any professional capacity when he impugned Carroll’s honesty and her motives. He was private Donald Trump defending the conduct of private Donald Trump.

And so a federal district court rejected the Department of Justice’s request to intervene. The judge held that the president of the United States doesn’t qualify as an “employee” of the federal government for purposes of the federal law that both enables and limits suits against the government for the conduct of employees. And it held that in any case, Trump’s comments didn’t qualify as coming within the scope of his employment or official duties as president.

Barr’s Justice Department appealed to the U.S. Court of Appeals for the Second Circuit. You would think that Attorney General Merrick Garland’s Department of Justice would have dropped the appeal. But instead it has filed a brief restating Barr’s arguments. In a key passage, the brief asserts that “speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.” And it claims that when reporters asked Trump in the Oval Office about Carroll’s rape allegations, “their questions were posed to him in his capacity as President.”

It’s hard to think of a meaningful justification for the department’s position. Perhaps the most charitable explanation would be that presidents will often be subject to personal criticism; that they will inevitably have to respond to those criticisms while in office; and that a sitting president shouldn’t have to be burdened by defamation lawsuits as a result.

Yet the Supreme Court addressed this issue in the Clinton v. Jones case, ruling that the president shouldn’t be treated as above the law when it comes to civil liability. Sure, the result may be a time-consuming legal entanglement for the president, as it was for Bill Clinton. But that’s the price the system pays for ensuring that the president doesn’t have a get-out-of-jail-free card when he violates another citizen’s rights.

Beyond any plausible argument for why the president should be protected from answering for an act of defamation, the only logic for Garland’s Department of Justice to continue the appeal would be institutional continuity. When the department changes its point of view in a case because a new president has been elected, it subtly undercuts the idea that the department’s judgment is supposed to be independent. And Garland’s number one job, at least in my view, is to reestablish continuity and normalcy in an independent Justice Department. That’s why, when it came to a different recent decision — protecting a memo written to Barr by the Office of Legal Counsel in connection with the Muller investigation — I gave Garland the benefit of the doubt.

The Carroll suit is different. The legal arguments are substantially weaker. It’s one thing to maintain the confidentiality of internal memos. It’s another for the department to undermine the rule of law by seeking to insulate a sitting president from liability for wrongs he commits in his personal capacity.

This seems to be a case of institutional continuity and executive self-interest gone too far. It’s good that, under Biden, the Department of Justice has the independence to make its own legal judgments. But this legal judgment is wrong.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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