Speaking in Chicago, the attorney general was asked about his department’s decision Tuesday to move the lawsuit against the president from state to federal court in New York, and signaling it wants to make the U.S. government — rather than Trump — the defendant in the case. Barr said the White House sent a memorandum to the Justice Department seeking the move, and civil litigation experts at the department agreed, in keeping with the normal procedure for such legal questions.
“This is a normal application of the law, the law is clear, it is done frequently, and the little tempest that’s going on is largely because of the bizarre political environment in which we live,” Barr said.
In a court filing in Manhattan federal court, Justice Department lawyers argued the president was “acting within the scope of his office as President of the United States” when he denied during interviews in 2019 that he had raped journalist E. Jean Carroll more than two decades ago in a New York City department store. Carroll sued Trump over that denial in November. The Justice Department’s intervention, at a minimum, will slow the case and could ultimately kill it entirely.
The attorney general cited a 2006 ruling by the D.C. Court of Appeals as further support for the department’s decision. In that case, a congressman had been sued over comments he’d made about his pending separation from his wife. The court ruled that even that topic was within the scope of his government employment because a lawmaker’s “ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents and colleagues in the Congress.”
Barr said similar legal arguments have been made by past presidents and vice presidents, including Barack Obama, George W. Bush and Richard B. Cheney. “This has become somewhat routine,” Barr said.
Stephen Vladeck, a professor at the University of Texas Law School, called it “a plausible argument” because courts have interpreted the scope of federal employment “very broadly, almost to the point where anything you do while on the job, courts usually treat as scope of employment.”
That would seem to support the Justice Department position, said Vladeck, who added: “It is not the most ridiculous argument this Justice Department has made in defense of this president.”
But, Vladeck said, the filing was still unusual, first in that it involves the president, and second, that it came after Carroll’s lawsuit was well underway in state court. Typically the Justice Department will step in at the “earliest moment” it becomes aware of such an issue, he said.
“The timing here is really suspicious, because if DOJ is convinced of its view that the conduct was within the scope of the federal officer’s employment, it not only has the ability, it has the obligation to step in,” Vladeck said. “That they waited until yesterday suggests that they were either sandbagging the state court, or they came to this position recently.”
Jonathan Turley, a constitutional scholar and law professor at George Washington University, said that while he disagreed with the decision to have the Justice Department intervene, the move was legal and will likely be approved by a court. That is because the law which the Justice Department cited — the Westfall Act — essentially ties the court’s hands.
“In my view, this is a case where the legal answer diverges from the right answer,” Turley said. “A president should not be able to use the Justice Department in cases of this kind. However, I think the court must approve this motion.”
Turley said it was “attenuated logic” to suggest that even though Carroll’s claim was tied to an event that allegedly occurred more than two decades ago, the case should be moved to federal court because the president made more recent comments on the matter. But he said courts have consistently interpreted broadly what applies as on-the-job conduct.
“I think this request was an appalling decision by the White House,” said Turley. “I think the attorneys in the White House knew that this is a virtually non-discretionary and automatic provision for the Justice Department. But wiser heads should have prevailed. Someone should have gone to the president and objected. This is not an appropriate use the Justice Department. I think it undermines the Justice Department.”
What is likely to happen next is that a judge will consider whether Trump was acting within the scope of his job when he made the comments about Carroll — in an interview with the Hill newspaper last year, the president called her a liar and said “she’s not my type” — and whether he can be considered a federal “employee” at all, Vladeck said.
If the Justice Department is successful, Vladeck said, the effect will almost certainly be to kill the lawsuit entirely. That is because if the government is substituted as a defendant for Trump, it will be protected by the concept of sovereign immunity — which grants the government broad protection from lawsuit. The Justice Department, Vladeck said, would then likely make a separate motion to throw out the case, and it would likely be granted.
“If DOJ is correct, if this certification is proper, the effect is not that they take over the case, the effect is that the case gets dismissed,” Vladeck said, noting that the time consumed by dealing with the question may be a win in itself, pushing the outcome past November’s election.
“Even if DOJ loses this argument, it’s going to take a while, so Trump wins almost by default,” Vladeck said.
Turley said that while he thought a court would likely approve the Justice Department’s motion to swap Trump out as the defendant, that would not necessarily be fatal to the case — at least not right away. Carroll could challenge immunity claims and seek to press forward with discovery, though she ultimately might face an uphill battle, Turley said.
The maneuver removes the case — at least for now — from state court in New York, where a judge last month had rejected Trump’s bid for a delay.
Carroll’s lawyer Roberta Kaplan blasted the department’s filing, saying in a statement Tuesday that the president’s legal move came as he was “soon going to be required to produce documents, provide a DNA sample, and sit for a deposition.”
“Realizing that there was no valid basis to appeal that decision in the New York courts, on the very day that he would have been required to appeal, Trump instead enlisted the U.S. Department of Justice to replace his private lawyers and argue that when he lied about sexually assaulting our client, explaining that she ‘wasn’t his type,’ he was acting in his official capacity as President of the United States,” Kaplan said.
“Even in today’s world, that argument is shocking. It offends me as a lawyer, and offends me even more as a citizen,” she said. “Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent, and shows even more starkly how far he is willing to go to prevent the truth from coming out.”