In a court filing Monday evening, the department reiterated its earlier stance that it should be able to take over former president Donald Trump’s defense against a lawsuit by writer E. Jean Carroll, a move that almost certainly would kill it.
The issue at hand is the law governing lawsuits against government officials acting in their official capacity — which are handled by the government itself, not the private person.
In 2019, Ms. Carroll publicly accused Mr. Trump of raping her in the 1990s, which Mr. Trump denied, saying, among other things that “she’s not my type” and saying she was trying to sell books. Ms. Carroll then sued for defamation.
The Justice Department under Attorney General William Barr asked to take over the case, calling Mr. Trump a government employee acting “within the scope of employment” in issuing the denials to the press.
The move was heavily criticized in liberal and progressive circles legal as another example of Mr. Barr’s supposed subservience to Mr. Trump.
In Monday’s filing with the 2nd U.S. Circuit Court of Appeals, the Biden Justice Department agreed with Mr. Barr.
“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” the department wrote in a brief signed by Brian Boynton, the acting head of the Justice Department’s Civil Division.
“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,” Mr. Boynton wrote.
The Justice Department was appealing a district court judge’s refusal to let it take over the defense and probably torpedo the lawsuit, because the government, which includes employees acting in their official capacity, cannot commit defamation under libel and slander law.
Still, the Justice Department brief distances itself from the former president.
“Then-President Trump‘s response to Ms. Carroll‘s serious allegations of sexual assault included statements that questioned her credibility in terms that were crude and disrespectful,” the Justice Department wrote. “But this case does not concern whether Mr. Trump‘s response was appropriate. Nor does it turn on the truthfulness of Ms. Carroll‘s allegations.”
“In making and defending a Westfall Act certification … the Department of Justice is not endorsing the allegedly tortious conduct or representing that it actually furthered the interests of the United States. Nor is a reviewing court making any such determinations in upholding the Department’s certification” as taking over the case, the department said.