Trump Gets Biden DOJ Help, Foiling Pleas for Accountability

The Biden administration’s decision to defend Donald Trump in a defamation suit filed by New York advice columnist E. Jean Carroll shows its priority is safeguarding the powers of the Oval Office rather than holding the former occupant accountable, legal experts say.

On Monday night, the Justice Department surprised many observers with a court filing strongly backing Trump’s assertion that his calling Carroll a liar in 2019 after she accused him of raping her in the 1990s was an official act shielded from lawsuit.

It wasn’t the first time the administration of President Joe Biden has stood behind Trump, and it may not be the last. Trump has raised a similar defense against recently filed lawsuits by Democratic members of Congress and Capitol police officers over his alleged incitement of the Jan. 6 insurrection.

Phil Andonian, a lawyer for Representative Eric Swalwell in one of those suits, said he took issue with the broad language of the government’s filing. “If everything is protected, it would make it almost impossible to hold the president accountable for anything,” said Andonian. “That just can’t be right.”

The Justice Department didn’t respond to a request for comment on Tuesday.

Scope of Duties

In its filing Monday in a federal appeals court in New York, the Justice Department called Carroll’s rape allegations “serious” and Trump’s response “crude and disrespectful” but said his comments nonetheless fell within the scope of his duties. The government noted that the federal law restricting claims against government employees had also protected former Secretary of State Hillary Clinton from a suit alleging her use of a private email server contributed to the 2012 deaths of U.S. security contractors in Benghazi.

Barbara McQuade, a law professor at the University of Michigan and former federal prosecutor, said the Justice Department under Attorney General Merrick Garland was probably acting in good faith to protect current administration officials from suits. But she said she thought the filing went too far in defining the scope of the president’s duties.

“While some communications are certainly within the scope of the duties of the president, denying allegations of misconduct from private life before he was president seems to be a stretch,” she said.

Harvard Law School Professor Laurence Tribe, a frequent Trump critic, said the Justice Department was simply wrong. “It’s just not the case that everything a sitting president says in an Oval Office interview or on the White House lawn automatically constitutes an official presidential proclamation,” said Tribe.

Harry Sandick, a former federal prosecutor in New York, said the Justice Department seemed to be trying to preserve presidential autonomy even though Trump’s conduct in office revealed the need for restraints.

‘Need for Guardrails’

“It would be refreshing to see DOJ take positions on these issues that reflect the need for guardrails,” Sandick said, “and the rule of law suffers when DOJ endorses the maximalist view of executive authority.”

The Biden administration has surprised Democrats before by backing other Trump exercises of power. The Justice Department last month asked a judge to dismiss an American Civil Liberties Union suit against Trump and former Attorney General William Barr over the violent clearing of Black Lives Matter protesters near the White House in June 2020, arguing the action was justified by the need to protect the president.

It’s also fighting to keep secret redacted portions of a memo relating to Barr’s controversial declaration that Special Counsel Robert Mueller’s investigation had found no evidence of obstruction of justice by Trump, appealing an order by a federal judge in Washington that most of the document be made public. The administration is still negotiating with House Democrats over whether to turn over Trump’s tax returns in response to a Congressional subpoena.

Barr’s move last September to have the Justice Department take over Trump’s defense in Carroll’s suit was seen by many legal experts at the time as overreach. U.S. District Judge Lewis Kaplan in Manhattan rejected the motion the following month, and the Biden administration was widely expected to drop the case. Carroll has previously expressed hope that she might sit across from Trump in a deposition this year. Her lawyer, Roberta Kaplan, condemned the Justice Department filing late Monday night.

Monday’s filing was the government’s brief in support of its appeal of the October ruling. A decision in Carroll’s favor by the appeals court could see the case go to the U.S. Supreme Court, where a 6-3 conservative majority includes three Trump appointees.

The scope of Trump’s official duties is also at issue in the Capitol riot suits. Representative Bennie Thompson, a Mississippi Democrat, is suing Trump along with several other members of Congress, while Swalwell, a California Democrat, has filed his own suit. Two police officers who were injured during the riot have also sued the former president. The suits all claim Trump’s speech at the rally that preceded the storming of the Capitol fell outside his presidential duties.

Joseph Sellers, Thompson’s lawyer, said he believed the riot suit was in “a different universe” from Carroll’s. “The duties of the president do not extend remotely to inciting a riot or to directing people to interfere with the ability of Congress to discharge its lawful duties,” Sellers said.

Trump’s lawyer in the Capitol riot cases, Jesse Binnall, did not respond to a request for comment on Tuesday, but he has argued in previous court filings that Trump’s Jan. 6 speech was shielded from liability.

“A political speech by the President is not at the ‘outer perimeter’ of his duties -- it is at the dead center,” Binnall said in a filing last month in the Swalwell case. “It is well recognized that rousing and controversial speeches are a key function of the presidency.”

©2021 Bloomberg L.P.

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.