During the presidential campaign, then-candidate Joe Biden hired then-President Donald Trump for using the Justice Department to represent Trump in a defamation lawsuit stemming from an allegation decades-old rape, asking, “What is this?”
As stupid as it sounds, his Justice Department must try to defend Trump. Not for the personal benefit of Trump the individual, but for Biden and all future presidencies.
But Biden is now president and his Justice Department is continuing the legal fight for the government to resume Trump’s defense in the case, which was brought against him by writer E. Jean Carroll. (Trump denied Carroll’s sexual assault complaint, saying it “never happened.”)
Is this a broken campaign promise? It’s more like an exposed campaign bombardment. This is not George HW Bush’s broken “read my lips – no new taxes” campaign promise. It sounds more like Trump’s campaign prediction that he will “not have time to go golfing” as president.
As Biden himself might say, “Come on, man,” that’s a seesaw. But it is understandable. Because Biden has no choice. As stupid as it sounds, his Justice Department must try to defend Trump. Not for the personal benefit of Trump the individual, but for Biden and all future presidencies.
Technically, the Justice Department never really sought to defend Trump personally when Carroll sued him while in office. Instead, then Attorney General William Barr decided to substitute the United States as the defendant for Trump, because he certified that Trump’s conduct occurred while the president was acting in within the framework of his mandate or employment.
Carroll charged Trump with sexual assault against her between the fall of 1995 and the spring of 1996. She is not suing Trump for assault because that civil statute of limitations has long expired. Instead, in 2019 Trump accused Carroll of making false accusations, which Carroll said were themselves false statements about him that caused him harm.
It’s sort of a legal end bypassing the assault statute of limitations. The key question in a defamation case is to prove whether a statement is false. So, then, proving the truth or falsity of the assault will be at the heart of the matter, even if the assault itself is not a claim.
Under a 1988 statute known as the Westfall Act, when “any government employee” is sued in an individual capacity and the Attorney General certifies that the employee “was acting in the course of his duty or employment at the time of the incident. whose claim arose, “the action is deemed to be an action against the United States – not the individual – under the Federal Tort Claims Act.
Legally, the Justice Department never defended Trump for the person – he defended the United States. Practically, however, Trump would no longer be the defendant. He would not pay attorney fees. He wouldn’t pay judgment.
Is it a distinction without difference? To many observers, probably. But for Biden, it’s a distinction with a big difference. Biden does not tolerate Trump’s behavior; it protects the presidency.
While Carroll’s lawsuit is not without merit, many trial attempts against presidents are. And the problem is, there is an endless supply of potential plaintiffs, often with deadlocked lawsuits. Presidents cannot be forced to personally defend their words in court against every potential claimant who claims to have been hurt by those words.
Does the president act in the job every time he opens his mouth? Probably not. But if the law is correct on the yes side, then all presidents would effectively be silenced by fear of legal fees and judgments.
Most presidents don’t have libel issues. Their personal lives are as meticulously choreographed as their public lives. Presidents are much more likely to annoy people than to slander them.
Trump was an anomaly. Future presidents aren’t likely to call others “wacky,” “liars” or “scary.” Biden and his Justice Department know this. That’s why defending Trump isn’t about protecting a former reality TV star turned commander-in-chief, it’s about protecting those who follow him into the Oval Office.
Meanwhile, Trump says absolute immunity and qualified immunity doctrines prohibit prosecution of him for the Capitol riot in January. Trump is also separately relying on the Westfall Act as further protection against these lawsuits, arguing that “the allegations stemmed from his allegations of political speech, clearly in the course of his employment.”
Cut through the legal jargon, the test is ultimately something like this: A president, in the midst of something presidential, suddenly utters something that has nothing to do with being the president defaming someone. one or incites a riot. For the purposes of the Westfall Act, isn’t he momentarily president when he says something wacky and reverts to president when the time passes? Or is he still the president, 24 hours a day, seven days a week, so he’s always on “official business” no matter what he says?
The Justice Department’s invocation of the Westfall Act to defend Trump in the defamation lawsuit could lend credence to his defense of his actions on January 6.
As in the Carroll case, the question here is also whether any presidential speech is always presidential, that is, as part of the official functions of the president. And the Justice Department’s invocation of the Westfall Act to defend Trump in the defamation lawsuit could lend credence to his defense of his actions on January 6.
The Justice Department should not have to defend unnecessary prosecutions resulting from reckless comments by the president. But Biden knows the Justice Department should defend most lawsuits resulting from most presidential comments, which means he can’t abandon the one he inherited from the last. He probably regrets that Trump is the one his Justice Department has to defend.