The legal maneuver would have required a judge to find that a federal tort law that protects government employees from civil liability applies to a sitting president.
Last year, a federal judge in Manhattan rejected the Justice Department’s effort to enter the case on the grounds that both elements were missing from the equation.
Civil Division attorneys began the appeals process while the question lingered as to whether the Biden administration would continue to advance the legal cause, an issue that has the potential to set a precedent for the current or future sitting presidents and, according to the filing’s authors, could leave vulnerable other Executive Office of the President officers and employees.
“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” a 24-page reply brief filed to the U.S. Court of Appeals for the 2nd Circuit on Monday evening read, confirming that the new administration did not intend to withdraw from a position first taken under Attorney General William P. Barr.
“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, later noting that when White House reporters requested comment on Carroll’s allegations, “their questions were posed to him in his 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.”
“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,” the statement continued.
“As women across the country are standing up and holding men accountable for assault — the DOJ is trying to stop me from having that same right,” Carroll said in a separate statement. “I am angry! I am offended!”
Carroll sued Trump in 2019, months after she published an account that described the former president sexually assaulting her inside a dressing room at the Bergdorf Goodman department store in Manhattan in the 1990s. The lawsuit was filed in response to denials made by Trump in which he accused the longtime journalist and advice columnist of lying, denied knowing Carroll and suggested that he couldn’t have had any kind of sexual encounter with her because she wasn’t his “type.”
Justice Department attorneys who penned the new brief noted that Trump’s statements that “attacked” Carroll’s appearance, “impugned her motives, and implied that she had made false accusations against others . . . were without question unnecessary and inappropriate,” but said the crude remarks amounted to a denial of her claims and were still made in the context of Trump’s presidency.
The former Elle columnist’s accusation of rape was in an excerpt from her book “What Do We Need Men For? A Modest Proposal,” which was published in New York Magazine.
The Justice Department’s attempted intervention on Trump’s behalf was controversial and seen by critics as an inappropriate bid by Barr to insulate the president from personal liability in what Carroll’s lawyers said was a purely personal matter — the alleged conduct having occurred decades before Trump took office.
In October, U.S. District Court Judge Lewis A. Kaplan ruled that Trump did not qualify as an “employee” of the government as defined by federal law and that he was not acting “within the scope of his employment” when he publicly responded to Carroll’s allegations. Kaplan ruled that Trump’s personal lawyers would have to resume their defense of him in the ongoing lawsuit.
The department’s filing Monday indicates that the Biden administration has decided to keep pushing to be allowed to treat a sitting president’s comments — albeit in response to a personal issue — as an official function of the office for the purposes of litigation that may arise from those comments.
Since leaving office, Trump remains burdened with investigations and lawsuits. In New York alone, the Manhattan district attorney and the New York attorney general have pending criminal and civil investigations into his company, the Trump Organization. Also in New York, former “Apprentice” contestant Summer Zervos, who accused him of sexual misconduct, has a defamation case against the ex-president.