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There is politics, and then there’s the law. Joe Biden criticized Donald Trump during the 2020 campaign for using the Department of Justice like “his own law firm” by having DoJ lawyers defend him in a defamation case. E. Jean Carroll, who had accused Trump of raping her, claims in the lawsuit that Trump defamed her while defending himself when he was president.
But in an appellate court filing on Monday night, Justice Department lawyers said they would continue to try and defend the former president. They have adopted Trump’s position that a president cannot be sued for defamation because he had made the alleged offending statements as part of his official duties as president.
Carroll accused Trump of committing a sexual assault in the 1990s and then making a statement as president calling her a liar and claiming that he couldn’t have assaulted Carroll because she wasn’t his “type.”
Confirming that the DoJ would not withdraw from a position first taken by Attorney General William Barr, the 242-page memo said that “Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.”
“Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials’ employment — including when the statements were prompted by press inquiries about the official’s private life,” the Civil Division lawyers argued. Since Trump’s offending statements were made by him in response to direct questions by a reporter, the attorneys argued that Trump had answered in his official capacity as president.
The legal issue at hand is not relevant to the substance of Trump’s remarks or to the validity of Carroll’s claims, the brief notes, saying the “case does not concern whether Mr. Trump’s response was appropriate. Nor does it turn on the truthfulness of Ms. Carroll’s allegations.”
Marc Kasowitz, a personal lawyer for Trump, submitted his own appeals brief Monday night in support of the Justice Department’s bid to reenter the case.
Roberta Kaplan, Carroll’s attorney, said in a statement that it was “truly shocking that the current Department of Justice would allow Donald Trump to get away with lying” about raping Carroll, “thereby depriving our client of her day in court.”
Critics of Trump’s efforts to utilize Justice Department resources for what amounted to a personal matter are shocked and angered at Biden’s DoJ moving to defend Trump. But the larger issues surrounding the defamation lawsuit supersede a previous ruling by Judge Lewis Kaplan of Manhattan that barred DoJ interference.
No doubt the Bide Justice Department will not get into the habit of defending anything Trump is accused of or anything his attorney general did while in office. The outcry against the current DoJ’s efforts to defend Trump may yet result in a reversal of this policy.
But Biden realizes that his Justice Department is protecting not only Trump but Biden and other current executive department employees. That necessitated the unusual move to file a brief agreeing with William Barr’s legal reasoning.