‘Crude’ Trump Words Don’t Justify Defamation Suit, U.S. Says

(Bloomberg) -- The Biden administration on Friday sided with Donald Trump in urging a federal appeals court to scuttle a defamation lawsuit brought by a woman who claims the former president raped her two decades ago. 

Lawyers for Trump and the U.S. Justice Department argued at a hearing in Manhattan that Trump is protected from New York advice columnist E. Jean Carroll’s lawsuit because his denial of her 2019 claims fell within his duties as a government employee.

Carroll went public in 2019 with her allegation that Trump sexually assaulted her in a New York department store dressing room and then sued him for defamation when he said she was “totally lying” and “not my type.” It was one of several instances of women accusing Trump of sexual misconduct.

Justice Department lawyer Mark R. Freeman said at the hearing that Trump had made “crude and offensive” remarks about “very serious accusations of sexual assault” made by Carroll.

“I’m not here to defend or justify those comments,” Freeman said. “I’m here because any president facing a public accusation of this kind, which the media was very interested in, would feel obliged to answer questions from the public.”

Trump’s lawyer Alina Habba agreed, arguing that sitting presidents must be allowed to publicly defend themselves without over-thinking every statement to the press.

‘Imperfect People’

“What are we going to do when Kyle Rittenhouse goes after President Biden for calling him a White supremacist,” Habba said, referring to the teenager who killed two people and injured a third with an AR-15 at a Black Lives Matter rally in Kenosha, Wisconsin, last year. “They need to focus on their job. We are all imperfect people.”

A lawyer for Rittenhouse at the time threatened to sue Biden for defamation but didn’t do so. Rittenhouse, 18, was acquitted of all charges.

Judge Denny Chin asked Habba if Trump had gone too far in his denial.

“Who is he serving when he says, ‘she’s not my type,’” asked Chin, an Obama appointee.

Habba said Trump’s critical words were just his way of saying, “I wouldn’t have done this. This isn’t me. I didn’t do this.” 

Carroll’s lawyer, Joshua Matz, said the argument put forth by the Biden administration and Trump “is at odds with the maxim that no one is above the law.” Matz told the panel that “facts matter” because at the current stage of the case all allegations must be accepted as true. 

“And here’s what that means,” Matz said. “The court must accept as true -- and by the way, it is true -- that Mr. Trump raped my client; that he knew who she was when he did it; that he knew she was telling the truth when she came forward; and that he responded with his longstanding private modus operandi for destroying people who come forward to reveal his misconduct; and that his actions went way beyond a mere denial.”

‘I Have To Lie’

Judge Guido Calabresi, a Clinton appointee, asked Matz if it wasn’t “equally possible” that -- even assuming the claims are true -- a president may think “I have to lie and attack” in order to protect the presidency, so people don’t lose faith.

“The fact is that the president often has done things that go beyond the law for purposes of the presidency,” the judge said. “Almost every president has done it. And Indeed, what is impeachable is when somebody like Mr. Nixon did something not for the presidency but for his own benefit. But that’s a mighty difficult thing.”

“It’s a line that will be violated in extreme circumstances,” Matz said.

The case will hinge on whether a sitting president qualifies as a government employee and, if so, if his comments about Carroll qualified as an official duty. The panel, which also includes Trump-appointee William Nardini, peppered each side with numerous questions for over an hour, without giving a clear indication of which way they were leaning.

While Trump was still president, his administration first intervened in the case to argue that the U.S. should be substituted for Trump in the case. Substitution -- allowed under the Westfall Act of 1988 -- would result in the case being dismissed because the U.S. can’t be sued for defamation.

Carroll’s supporters and many Democrats expected Biden’s DOJ to withdraw that view, but instead it doubled down, saying in court filings that while it didn’t support Trump’s comments about Carroll, the Westfall Act gave broad protections from litigation to government employees, including the sitting president, when the disputed actions relate to their duties.

The Westfall Act has previously been applied to other presidents in litigation, including Barack Obama, Bill Clinton and George W. Bush, though under different circumstances.

In a statement after the hearing, Carroll said, “In no world was Donald Trump upholding the Office of the Presidency when he claimed I was ‘not his type’ and called me a liar after I came forward as a survivor of sexual assault at his hands. His comments were personal attacks meant to punish me for daring to speak the truth -- just as so many other powerful men have sought to crush and re-traumatize women who reveal their sexual misconduct.”

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