Remember when presidents cared about the independence of the Justice Department? I do, too. But now even the veneer of independence is gone. There is no daylight between President Donald Trump’s interests and the Justice Department’s positions.
The latest and greatest example of the Justice Department’s advocating for Trump’s private interests is its decision to jump in and defend him against abhorrent accusations of defamation stemming from an allegation of sexual assault. Almost a year ago, E. Jean Carroll sued Trump for defamation based on his statements claiming that he did not sexually assault her in the 1990s, well before he was president of the United States. If Trump did, in fact, sexually assault Carroll, his denial is a false statement of fact that could give rise to liability for defamation. Trump, of course, claims he did not assault Carroll, telling reporters, “I’ve never met this person in my life.”
Carroll said this decision by the Justice Department is “unprecedented.” But the reality is a bit more nuanced. The Justice Department can and does step in sometimes to defend individual federal employees against tort suits under a federal law known as the Westfall Act. The problem here is that federal employees are only entitled to the help of the federal government if the claims against them arise from their official duties. Hence the Justice Department can defend Trump here only if he is considered a federal employee and if his denial of Carroll’s sexual assault claims was made within the scope of his employment.
By intervening, the Justice Department claims that when Trump denied knowing Carroll, he was acting in his official capacity. There is not an official definition of when the president is acting within the scope of his employment, meaning in his official capacity. But we certainly have guideposts. When the president signs a bill or negotiates a treaty, he is acting in his official capacity. But if we conclude that Trump made this denial of decades-old sexual assault allegations in his official capacity, it is hard to see what type of statements would not be made in a president’s official capacity. Or put another way, if this is not a statement made in Trump’s personal capacity, what is?
After this case is removed to federal court, the Justice Department will argue that Trump, as a federal employee, is immune from claims of defamation that are made during the course of his official duties. If successful, this would also end Carroll’s suit and prevent her from obtaining evidence in her case. Carroll wishes to depose and obtain DNA evidence from Trump to prove her defamation case.
The Justice Department will argue that its intervention is nothing more than a normal application of the Westfall Act. But the American people should not be footing the bill for a legal defense of the president’s private actions.
Sadly, this type of partisanship on the part of the Justice Department has become par for the course under Attorney General William Barr. Remember when Barr provided a “summary” of the Mueller report that was not so much a summary as it was a fictionalized revision?
And what about the Justice Department’s intervention in federal cases against Trump’s friends and confidants? The Justice Department is still trying to drop the charges of lying to the FBI against Michael Flynn, Trump’ former national security adviser. The Justice Department also advocated for a reduced sentence for Roger Stone, who has been convicted of lying to Congress. And it joined in defending Trump against lawsuits by Congress and the New York state prosecutor’s office that sought to obtain financial records from him, the Trump Organization and his family members.
Democrats and Republicans should be united in condemning the Justice Department’s involvement in all of these cases. The Trump administration has set a dangerous precedent for future administrations, regardless of partisan affiliation. Do Republicans really want to stand by and enable a precedent whereby future attorneys general do the political bidding of future Democratic presidents?
Let us remember for a moment what the Justice Department is charged with doing — enforcing, defending and promoting the law. The Justice Department gives advice to the federal government and brings and defends lawsuits involving the federal government. It exists to protect and uphold the law, not the president, whoever he or she may be.
In 1978, Attorney General Griffin Bell famously described the Justice Department as “the acknowledged guardian and keeper of the law.” Bell spoke about the need for the Justice Department to be free from outside pressure and influence in the administration of the law. Barr’s Justice Department is not a keeper of the law so much as it is a legal handmaiden for the president of the United States.
