Government

Justice Department Swoops In To Save Trump From Submitting DNA In E. Jean Carroll Defamation Suit

Hooray! Who's excited to foot the bill for Donald Trump's attorneys?

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(SAUL LOEB/AFP/Getty Images)

Yesterday, the Justice Department filed a motion removing E. Jean Carroll’s defamation suit against the president to federal court. The disputed evidence in this case is literally Donald Trump’s own body, and yet the federal government demands to be substituted as defendant because the president was acting “within the scope of his employment” when he said he couldn’t possibly have raped Carroll because she was “not my type.”

Not to put too fine a point on it, but 2020 is F*CKED UP.

In June of 2019, longrunning Elle advice columnist E. Jean Carroll wrote in New York Magazine that Trump had raped her in a dressing room of Bergdorf Goodman’s on 5th Avenue — where Trump could famously shoot someone and not lose one supporter — 25 years ago. Trump denied the allegations repeatedly, claiming never to have met Carroll, implying that she was carrying out a political attack, and telling The Hill, “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened, OK?”

With great respect.

Carroll sued Trump for defamation in New York state court almost a year ago, since which time the president has ducked service of process, made various assertions of immunity, and generally tried to throw sand in the gears. Having exhausted all remedies and facing the prospect of having to turn over his DNA to see if it matches the male genetic material found on the dress Carroll wore the day of the alleged assault, Trump’s consigliere at the Justice Department has come to the belated realization that his boss was just, ummm, doing his job when he called Carroll a liar.

“Defendant Donald J. Trump was acting within the scope of his office as the President of the United States at the time of the alleged conduct,” attested James G. Touhey, Jr., Director of the Torts Branch at the DOJ’s Civil Division in yesterday’s filing.

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In its Motion to Substitute the United States as Defendant, the government gestured vaguely toward the presidential media obligations, writing that “Numerous courts have recognized that elected officials act within the scope of their office or employment when speaking with the press, including with respect to personal matters, and have therefore approved the substitution of the United States in defamation actions.”

Other than that, Mr. Touhey and AAG Stephen Terrell did not elaborate as to how the president’s comments on events which preceded his presidency by 20 years relate to his current “employment.” Nor did they explain how this theory of the president as “employee” gibes with the theory of a unitary executive immune from civil and criminal process in both federal and state court and with absolute control over the Justice Department, which the government has been pressing since January of 2017.

Under the Westfall Act, the Attorney General can unilaterally certify that a government “employee” was acting within the scope of his employment and substitute the government as defendant in a tort claim, and by God, Bill Barr is going to do it no matter how much prestige it costs the Justice Department. And since defamation cases against the federal government are not authorized by statute, a successful move to substitute the United States of America as defendant would effectively disappear the entire suit.

(Remember those halcyon days where twelve lawyers in America had to concern themselves with the vagaries of the Westfall Act, the Hatch Act, the Logan Act, and the Federal Vacancies Reform Act and the rest of us could just get on with our lives?)

The “new” case is already off to an inauspicious start, with the DOJ filing it as Carroll v. USA, and the Southern District of New York forcing them to re-docket it as Carroll v. Trump, the original caption. They’ve also drawn U.S. District Judge Lewis Kaplan, a Clinton appointee. So, make of that one what you will.

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Carroll’s lawyer Roberta Kaplan, a partner at Kaplan Hecker & Fink LLP, and counsel for E. Jean Carroll, was disgusted.

“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.”

And Carroll herself was defiant.

“Today’s actions demonstrate that Trump will do everything possible, including using the full powers of the federal government, to block discovery from going forward in my case before the upcoming election to try to prevent a jury from ever deciding which one of us is lying,” she said. “But Trump underestimates me, and he also has underestimated the American people.”

No one should ever underestimate E. Jean Carroll! As to the American people, well, that remains an open question.

Notice of Removal [Carroll v. Trump, Supreme Court of the State of New York, County of New York, Index No. 160694/2019]

Motion to Substitute Party [Carroll v. Trump, No. 1:20-cv-07311 (S.D.N.Y. Sep 8, 2020)]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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