The Washington PostDemocracy Dies in Darkness

Opinion The Justice Department is not the president’s private law firm

Attorney General William P. Barr at the White House on April 1. (Jabin Botsford/The Washington Post)

ATTORNEY GENERAL William P. Barr routinely bristles at suggestions that his Justice Department looks more and more like a taxpayer-funded law firm for President Trump. Mr. Barr insists his decisions reflect no other consideration than the rule of law when he sics prosecutors on those who were involved in the Russia investigation or when he orders the department to go easy on the president’s friends. But how about when Justice Department lawyers step in to defend Mr. Trump in a private lawsuit that has nothing to do with government business?

The department moved Tuesday to take over defending Mr. Trump in a lawsuit brought by E. Jean Carroll, who accused Mr. Trump of raping her in a Bergdorf Goodman dressing room in the mid-1990s. The president said in June 2019 that Ms. Carroll was “totally lying,” that he did not “know anything about her” and that he could not have raped her because she is “not my type.” Ms. Carroll countered with a defamation suit.

Stepping in on Tuesday, the Justice Department claimed that “President Trump was acting within the scope of his office as President of the United States when he publicly denied as false the allegations.” Therefore, the suit must be moved into federal court from state court, delaying a potential presidential deposition that might have occurred before the November election.

If the courts go along, Mr. Trump would not only get free lawyering and the Justice Department’s imprimatur for his defense, but he also would escape any personal liability for his statements. The federal government cannot be sued for defamation, so the case would simply disappear, effectively transferring the protections of sovereign immunity to anything Mr. Trump says. It would be effectively impossible for the president to commit libel or slander.

It seems impossible to argue that Mr. Trump’s denials were official government acts. Ms. Carroll’s suit concerns actions Mr. Trump allegedly took when he was a private citizen. Though he issued his denials while he was president, these statements bore no relationship to government policy or administration. It may be within the president’s job description to speak to the media, but the lack of any substantive connection to government should matter.

In the past, the Justice Department has stepped in to defend members of Congress who gave arguably defamatory statements to the media, which set precedents on which the president now appears to rely. In those cases, regarding Reps. Cass Ballenger (R-N.C.) and John P. Murtha (D-Pa.), the statements in dispute had some connection to foreign affairs. Justice’s latest move is an order of magnitude more unseemly.

As President Trump threatens to unleash the military on American cities roiled in civil unrest, it's clear that he's embracing his inner Nixon. (Video: The Washington Post)

Trying to construe the president’s self-serving words about a purely private matter as official acts conflates the person of the president with the nation’s government. That is what occurs in dictatorships, not democracies. President Bill Clinton paid for his own lawyers when he defended himself in the Paula Jones lawsuit. The Justice Department should not now be helping Mr. Trump wriggle out of responsibility for his own words in a private matter.

Read more:

Read a letter in response to this editorial: A threat to the proud tradition of the civil service

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Greg Sargent: The real lawless extremist in the race is Trump. And he has William Barr’s help.

Norman Eisen: Trump wanted his Roy Cohn. In William Barr, he found his John Mitchell instead.

The Post’s View: America must listen to E. Jean Carroll. It’s clear Trump won’t.

Alyssa Rosenberg: Trump will never be held accountable for his treatment of women