The Justice Department’s institutional obligations do not change because Donald Trump is a horror show.
The Biden administration just did something many of its supporters would’ve thought unthinkable: It backed the Trump administration in a court case involving a rape allegation against Donald Trump. Even the four Justice Department lawyers who filed a brief defending Trump Monday night appear painfully aware they are doing something unseemly.
“Then-President Trump’s response to Ms. Carroll’s serious allegations of sexual assault included statements that questioned her credibility in terms that were crude and disrespectful,” the brief begins. It labels Trump’s actions “unnecessary and inappropriate,” and at one point appears to concede that the allegations against Trump “cast doubt” on his “fitness for office.”
And yet, the Biden Justice Department ultimately argues that Carroll v. Trump, a case arising out of a rape allegation against the former president, should be dismissed.
E. Jean Carroll is a veteran advice columnist who is also one of many women who’ve credibly accused Trump of sexual assault. Trump denies the allegation, claiming he’s never met Carroll (a 1987 picture shows them at a party together) and that he couldn’t have raped her because she’s “not my type.”
The Carroll lawsuit does not directly concern the alleged rape. Rather Carroll sued Trump for defamation after the former president denied the allegation and then made a number of derogatory claims about Carroll, including a claim that Carroll merely accused him of sexual assault because she’s “trying to sell a new book.”
DOJ, for its part, takes no position on who is telling the truth in this dispute between Carroll and Trump. Rather the Justice Department argues the federal Westfall Act immunizes Trump from Carroll’s lawsuit because Trump’s denial of Carroll’s allegations were made “within the scope of his office or employment” as president of the United States.
It’s an argument that the Justice Department first made while Trump was still in office. Now it’s decided to reaffirm that argument under President Joe Biden.
DOJ’s decision to side with Trump sparked widespread backlash, even from the White House itself. Though the White House said in a statement that it “was not consulted by DOJ on the decision to file this brief or its contents” and that it is “not going to comment on this ongoing litigation,” its statement also emphasized that “President Biden and his team have utterly different standards from their predecessors for what qualify as acceptable statements.”
And yet, as fraught as this particular case is, it is not surprising that the Justice Department is making the arguments it is making on Trump’s behalf.
One of the Justice Department’s primary functions is to defend the institutional interests of the presidency, even when those interests conflict with some of DOJ’s other obligations, such as its obligation to defend the constitutionality of federal laws. The Justice Department is also normally reluctant to change its position in a pending case, lest it give judges the impression that DOJ’s arguments are motivated more by politics than by law.
The Carroll case presents profoundly important questions about when the president can be sued by a private citizen and what sort of suits are permitted against a president. Carroll has strong legal arguments on her side, but if she ultimately prevails, her victory could fundamentally weaken the presidency as an institution — and it could do so when future presidents are sued for conduct far less odious than Trump’s.
Carroll, in other words, forced the Justice Department to choose between its institutional responsibilities and avoiding the repugnance of being associated with Trump’s behavior. It ultimately decided that its larger responsibilities must prevail.
The Justice Department’s institutional role, explained
The Department of Justice can be a frustrating institution. It’s long operated under a web of informal rules and procedural norms that can operate in counterintuitive ways, often placing DOJ at odds with the interests of the sitting president or even much of the country.
As former Solicitor General Drew Days explained in a 1996 lecture, the Justice Department has traditionally recognized “a general duty to defend congressional statutes against constitutional challenges,” even when the president or the president’s party opposes that statute.
But this duty to defend can operate in unexpected ways. In 2012, for example, former Solicitor General Paul Clement laid a brilliant trap for the Obama administration.
Clement was the lead attorney challenging the Affordable Care Act in NFIB v. Sebelius (2012), the landmark Supreme Court decision that upheld most of that law. Much of this challenge focused on the law’s since-repealed individual mandate, which required most Americans to either obtain health insurance or pay higher taxes. One of Clement’s primary arguments was that, if Congress had the authority to enact such a provision, then there would be no limits to its power.
The reason why this was such a clever trap is because the Justice Department isn’t simply tasked with defending any one law. It must defend nearly all laws that are passed by Congress, including any hypothetical future laws that might be enacted someday. For this reason, Justice Department lawyers are extraordinarily reluctant to concede that any possible statute is unconstitutional. If DOJ concedes today that Congress could not pass a law requiring people to eat broccoli, that very concession could be used against DOJ years later.
So, when Justice Anthony Kennedy asked a fairly obvious question of then-Solicitor General Donald Verrilli — could Verrilli “identify for us some limits” on Congress’s ability to regulate? — Verrilli gave a halting and unsatisfying response that did not answer the question.
Even when arguing the biggest case of his life, a case that was an existential threat to the Obama administration’s signature legislative accomplishment, Verrilli placed the Justice Department’s institutional norms above the interests of Obamacare, President Obama, and the millions of Americans who would benefit from that law.
Yet, while the Justice Department has traditionally taken its duty to defend even hypothetical federal statutes so seriously that it’s sometimes willing to pay an extraordinary price to uphold this duty, the duty is not absolute. In his 1996 lecture, Days lists two instances when it is appropriate for the Justice Department to refuse to defend a federal law.
The first is when the law is “patently unconstitutional.” The second, which has obvious relevance to the Carroll case, is when the law steps on the institutional prerogatives of the president.
“Solicitors general have always sided with the president in disputes over the constitutionality of congressional attempts to circumscribe presidential power,” Days explains.
And there’s also a third institutional norm that weighs in favor of the Justice Department continuing to defend Trump. DOJ is the ultimate repeat player in federal litigation. It litigates thousands of cases every year. If Justice Department lawyers get a reputation for changing their arguments every time a new president comes into office, judges across the country could decide that those arguments are not credible, and DOJ risks losing many, many cases.
For this reason, the Justice Department is typically very reluctant to switch positions in a pending case, even after the presidency changes hands. The George W. Bush administration did not switch its position in a single Supreme Court case that had already been briefed by the Clinton administration, and the Obama administration took the same approach to Supreme Court cases briefed by the Bush administration.
Admittedly, the Trump Justice Department did not respect many of these norms, and that places Attorney General Merrick Garland and his subordinates in a tough spot. Biden’s Justice Department has abandoned the Trump administration’s position in several pending cases, including a case where Trump’s DOJ asked the Supreme Court to strike down Obamacare.
But that does not change the fact that the DOJ risks its own credibility every time it changes its position in a pending case — including if it had switched its position in the Carroll case.
The president’s institutional prerogatives are very much at stake in Carroll
The Westfall Act protects federal employees from many lawsuits filed against them while they were “acting within the scope of [their] office or employment.” When the Westfall Act applies, the individual federal employee who was originally sued is dropped from the suit, and the United States is replaced as a defendant.
Under a doctrine known as “sovereign immunity,” the United States typically cannot be sued for money damages unless it consents to the suit, and the United States has not consented to being sued for defamation. So, if the Westfall Act applies to Trump’s case, the case will most likely be dismissed in its entirety.
At this stage in the Carroll litigation, courts are trying to resolve two questions: whether a sitting president counts as an “employee of the government” under the Westfall Act and whether Trump’s statements about Carroll were made within the scope of that employment. (A federal district court ruled against Trump on both questions, but the case is now on appeal.)
The best argument that Trump did not count as an “employee of the government” relies on a federal statute that provides that the list of such employees “includes” all “officers or employees of any federal agency.” Though the president supervises most federal agencies, the White House is typically not regarded as an “agency” itself.
But this argument is not a slam dunk. In Wilson v. Libby (2008), for example, a federal appeals court applied the Westfall Act to a high-ranking White House staffer — in that case, the vice president’s chief of staff. If such a White House staffer can benefit from the Westfall Act, it’s not at all clear why the president cannot.
Similarly, it may seem ridiculous to claim that Trump acted within the scope of his official duties when he denied a rape allegation made by a private citizen, who accused him of assaulting her long before he became president. But an appeals court’s decision in Council on American Islamic Relations (CAIR) v. Ballenger (2006) cuts in Trump’s favor.
Cass Ballenger was a member of Congress who told a reporter that he was separated from his wife because she did not enjoy life in Washington, DC. Yet, in doing so, Ballenger allegedly made defamatory comments against CAIR, a Muslim civil rights group, claiming CAIR was the “fund-raising arm for Hezbollah.”
After CAIR sued Ballenger for defamation, the appeals court dismissed the case under the Westfall Act, reasoning that Ballenger’s statement was made during the course of his official duties. “A Member’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,” the Court reasoned. Thus, “there was a clear nexus between the congressman answering a reporter’s question about the congressman’s personal life and the congressman’s ability to carry out his representative responsibilities effectively.”
Both Wilson and Ballenger were decided by the United States Court of Appeals for the District of Columbia Circuit, and the Carroll case is being heard by the Second Circuit. So the Second Circuit’s judges are not bound by these two previous decisions. Nevertheless, the fact that the DC Circuit reached the conclusions that it did in these two cases suggests that, at the very least, Trump has plausible legal arguments on his side.
Moreover, if the courts were to conclude that the Westfall Act does not apply to the presidency or that the scope of the president’s official duties should be defined narrowly, that would have significant implications for the presidency as an institution.
Imagine, for example, if a cabal of QAnon followers decided to bombard President Biden with meritless lawsuits. If Biden cannot rely on the Westfall Act, he could need to hire private counsel and spend considerable time defending himself against these suits, potentially distracting him from his official duties.
By backing Trump in the Carroll case, in other words, DOJ can try to convince courts not to interpret the Westfall Act in a way that may damage the presidency.
Carroll is not the first case in which the DOJ has sided with a president who was accused of sexual misconduct. In Clinton v. Jones (1997), Paula Jones sued President Bill Clinton for sexual harassment. Although Clinton was represented by private counsel, the Justice Department also sided with Clinton in this case, arguing that allowing private suits against a sitting president to move forward created “serious risks for the institution of the presidency.”
As in Carroll, the Justice Department believed it had a duty to defend the presidency as an institution. And so it backed Clinton in an attempt to protect the president from lawsuits that could distract him from his official duties.
All of which is a long way of saying that the Justice Department’s decision to back Trump in Carroll is consistent with longstanding DOJ practice. The department’s move in Carroll is very similar to its actions in the Jones case.
Trump, however, may not want to take solace in this fact. Clinton lost his case in a unanimous Supreme Court decision.