In a brief filed on Monday night, the Department of Justice argued that it should be allowed to swap itself out as the defendant in a defamation lawsuit filed by the writer E. Jean Carroll against former president Donald Trump.
The brief is an extension of the DOJ’s argument that statements made by the president are done so within an official capacity. Therefore, comments made on a personal matter — like denying a rape allegation by saying “she’s not my type” and “it never happened” — still allow Trump to be protected as an “employee of the government,” as the Department of Justice noted in its brief. It also asserts that Trump is entitled to a level of executive immunity because he acted “within the scope of his office when, in this context, he [sought] to defuse personal issues that threaten to impair his ability to achieve his agenda.”
“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” lawyers from Justice wrote. “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.” According to a statement from White House deputy press secretary Andrew Bates, the executive branch was “not consulted by DOJ on the decision to file this brief or its contents” and does not intend “to comment on this ongoing litigation.”
In June 2019, New York published an excerpt from E. Jean Carroll’s memoir in which she accused Donald Trump of raping her in a Bergdorf Goodman dressing room around 1995. When he denied her allegation or ever meeting Carroll — despite a photo of them together in the late 1980s — Carroll sued the former president for defamation. In October 2020, a district judge denied the Department of Justice’s effort to replace him in the lawsuit. If a federal judge determines that the motion to replace Trump can move forward, it will most likely be dismissed because the federal government cannot be sued for defamation.
In a statement on Monday, Carroll’s lawyer Roberta Kaplan wrote: “The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward.” Kaplan added that Trump’s denials were “not the official act of an American president” and that the determination will be made by appellate judges of the Second Circuit Court.
In the filing, the DOJ added that “the government does not dispute that many of the statements alleged in the complaint were unwarranted and disrespectful.” Nevertheless, it says, “That is not the relevant inquiry.”