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Biden’s DOJ wants to defend Trump in his defamation case. It’s right even if it feels wrong.

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Biden's DOJ wants to defend Trump in his defamation case. It's right even if it feels wrong. 2

During the presidential campaign, then-candidate Joe Biden skewered then-President Donald Trump for using the Justice Department to represent Trump in a defamation lawsuit stemming from a decades-old rape allegation, asking, “What’s that all about?”

As silly as it looks, his Justice Department has to try to defend Trump. Not for the personal benefit of Trump the individual, but for Biden’s and all future presidencies.

But Biden is now president, and his Justice Department is continuing the legal fight to have the government pick up Trump’s defense in the case, which was filed against him by the writer E. Jean Carroll. (Trump has denied Carroll’s sexual assault claim, saying it “never happened.”)

Is this a broken campaign promise? It’s more like exposed campaign puffery. It’s not George H.W. Bush’s broken “read my lips — no new taxes” campaign promise. It’s more akin to Trump’s campaign prediction that he was “not going to have time to go play golf” as president.

As Biden himself might say: “C’mon, man,” that’s a flip-flop. But it’s an understandable one. Because Biden has no choice. As silly as it looks, his Justice Department has to try to defend Trump. Not for the personal benefit of Trump the individual, but for Biden’s and all future presidencies.

Technically, the Justice Department never actually sought to defend Trump personally when Carroll sued him while he was in office. Instead, then-Attorney General William Barr moved to substitute the U.S. as the defendant for Trump because it certified that Trump’s conduct happened while the president was acting within the scope of his office or employment.

Carroll has accused Trump of sexual assault against her some time between the fall of 1995 and the spring of 1996. She’s not suing Trump for assault, because that civil statute of limitations expired long ago. Instead, in 2019, Trump accused Carroll of making false accusations, which Carroll now says were, themselves, false statements about her that caused her harm.

It’s a kind of legal end run around the statute of limitations for assault. The key issue in a defamation case is proving whether a statement is false. So, then, proving the truth or falsity of the assault will be at the core of the case, even though the assault isn’t itself a claim.

Under a 1988 law known as the Westfall Act, when “any employee of the government” is sued in an individual capacity and the attorney general certifies that the employee “was acting within the scope of his office or employment at the time of the incident out of which the claim arose,” the action is deemed to be a suit against the United States — not the individual — pursuant to the Federal Tort Claims Act.

Legally, the Justice Department was never defending Trump the person — it was defending the U.S. Practically, however, Trump would no longer be the defendant. He wouldn’t pay attorneys fees. He wouldn’t pay a judgment.

Is this a distinction without a difference? To many observers, probably. But to Biden, it’s a distinction with a big difference. Biden isn’t condoning Trump’s behavior; he’s protecting the presidency.

While Carroll’s lawsuit isn’t meritless, a lot of attempted lawsuits against presidents are. And the problem is that there’s a never-ending supply of would-be plaintiffs, often with unhinged lawsuits. Presidents can’t be forced to personally defend their words in court against every prospective plaintiff claiming to have been hurt by those words.

Is the president acting in the scope of employment every time he opens his mouth? Probably not. But if the law doesn’t err on the side of yes, then all presidents would be effectively silenced by the fear of legal fees and judgments.

Most presidents don’t have defamation problems. Their personal lives are as meticulously choreographed as their public lives. Presidents are much more likely to bore people than to slander them.

Trump was an anomaly. Future presidents aren’t likely to call other people “wacky,” “lying” or “creepy.” 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 but about protecting those who follow him into the Oval Office.

Meanwhile, Trump is claiming that the doctrines of absolute immunity and qualified immunity bar lawsuits against him for the Capitol riot in January. Trump is also separately relying on the Westfall Act as yet another protection against those lawsuits, arguing that the “allegations arose out of his allegations of political speech, clearly within the scope of his employment.”

Cutting through the legalese, the test is ultimately something like this: A president, in the middle of something presidential, suddenly utters something that has nothing to do with being the president that defames someone or incites a riot. For Westfall Act purposes, is he momentarily not the president when he says something wacky and then goes back to being the president when the moment passes? Or is he always the president, 24 hours a day, seven days a week, such that he is always on “official business” no matter what he says?

The Justice Department’s invoking the Westfall Act in defending Trump in the defamation suit could give credence to his defense of his actions on Jan. 6.

As with the Carroll case, the issue here is also whether all presidential speech is always presidential — that is, in the scope of the president’s official duties. And the Justice Department’s invoking the Westfall Act in defending Trump in the defamation suit could give credence to his defense of his actions on Jan. 6.

The Justice Department shouldn’t have to defend unnecessary lawsuits resulting from reckless presidential comments. But Biden knows that 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 one. He probably resents that Trump is the one his Justice Department has to defend.

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