White House Asked Justice Dept. to Take Over Defamation Suit Against Trump, Barr Says

WASHINGTON — The White House asked the Justice Department to replace President Trump’s private lawyers to defend against a woman’s accusations that he defamed her last year in denying her claim that he sexually assaulted her a quarter-century ago, Attorney General William P. Barr said on Wednesday.

The Justice Department’s intervention in the lawsuit means that taxpayer money will be used to defend the president, and it threatens the continued viability of the case of the plaintiff, the author E. Jean Carroll.

Mr. Barr defended the decision to intervene, arguing that it was routine for the department to take over lawsuits against federal officials — substituting the government as the defendant.

“This was a normal application of the law,” Mr. Barr said during a news conference in Chicago. “The law is clear. It is done frequently. And the little tempest that is going on is largely because of the bizarre political environment in which we live.”

Ms. Carroll’s lawsuit has been reassigned from a New York State court to a Federal District Court judge in New York, Lewis A. Kaplan. If he signs off on the department’s certification that it meets the standards to substitute the government as the defendant, he could dismiss the lawsuit because the government has sovereign immunity and cannot be sued for defamation.

Mr. Barr’s public comments were his first since the Justice Department’s abrupt intervention a day earlier in the lawsuit brought by Ms. Carroll last November.

Mr. Barr said the department was responding to a memorandum from the White House requesting that it take over the case under a law called the Westfall Act, arguing that Mr. Trump had acted in his official capacity as president when he denied Ms. Carroll’s accusation that he had sexually assaulted her years ago in a department store dressing room.

Mr. Trump called Ms. Carroll a liar and said he did not know her, even though the two had been photographed together at a party in 1987 with Ms. Carroll’s former husband. He also said she was “not my type.” She then sued him for making defamatory statements about her.

The Carroll case was at a delicate moment for the president when the Justice Department intervened. Mr. Trump’s personal lawyers had tried to put the lawsuit on hold, but a judge ruled last month that it could proceed. That ruling had also seemingly cleared a path for Ms. Carroll’s legal team to pursue its request that Mr. Trump provide a DNA sample to determine whether his genetic material is on a dress she was wearing at the time of the encounter.

The department’s motion to take control of the case came as Mr. Trump’s private lawyers were facing a deadline to appeal an order compelling a deposition and a DNA sample.

In portraying the Justice Department’s intervention this week as unremarkable, Mr. Barr did not explain why the administration had waited more than 10 months to step in.

The move to portray the case as centering on an official action by Mr. Trump has drawn scrutiny. A federal judge reviewing whether the intervention was legitimate will have to decide whether Mr. Trump was acting within the scope of his employment as president when he disparaged Ms. Carroll, said Ben Berwick, a former Justice Department official who defended federal programs against civil lawsuits during the Obama administration.

“Courts have taken a relatively broad view of what is included in the scope of a president’s official duties,” he said. “But the specific facts here raise the question of whether attacking a private citizen and denigrating her appearance — rather than simply denying her allegations — is part of the president’s job. A court might look skeptically at that.”

But Mr. Barr said the Westfall Act clearly applied given the context of Mr. Trump’s comments: He was talking to the news media, while in office.

“The court said that elected officials in our representative democracy, when they are answering questions in office even about personal affairs, any defamation claim is subject” to the substitution law, Mr. Barr said.

Mr. Barr pointed to a 2006 ruling by the Court of Appeals for the District of Columbia Circuit involving a North Carolina congressman who, while talking to a reporter who had inquired about his separation from his wife, made an allegedly defamatory statement against a Muslim civil rights organization, which sued him.

The appeals court ruled that even though the congressman had made the comments about his personal life, the context of an elected official talking to the news media was sufficient to fall under the law. It also affirmed then dismissing the case because the government had not waived its sovereign immunity against being sued over such a matter.

Some legal commentators have raised a technical legal question of whether the law that permits the Justice Department to take over cases against federal employees might not apply to Mr. Trump, as he might not count as a “federal employee” because of the nature of his constitutional position.

But Mr. Barr said it was “crystal clear” that the substitution law applied to Mr. Trump, saying it had been invoked to end lawsuits against former President George W. Bush, former Vice President Dick Cheney and President Barack Obama.

While Mr. Barr did not cite them, there appear to be several cases in which the Justice Department successfully invoked the Westfall Act to substitute the U.S. government in lawsuits where a president or vice president had been named as a defendant, though those did not involve defaming someone in the context of discussing pre-presidential conduct.

For example, the department invoked that law to dispose of a class-action lawsuit filed in 2013 against Mr. Bush, Mr. Cheney and high-ranking members of their administration over their roles in starting the Iraq war. In 2017, the Court of Appeals for the Ninth Circuit upheld substituting the United States as the defendant in that case — and its dismissal.

And in 2015, the Justice Department persuaded a federal judge in Pennsylvania to substitute the government as a whole for a list of defendants that included Mr. Obama in a lawsuit brought by a man representing himself and who was upset that the Air Force would not nullify his 1988 discharge and reinstate him.

Last month, Verna L. Saunders, a New York Supreme Court justice, rejected Mr. Trump’s request to delay the Carroll defamation case while an appeals court considered a separate matter brought by a woman who claimed that Mr. Trump had sexually assaulted her while she was a contestant on his reality television show, “The Apprentice.” Mr. Trump denied the accusation.

Justice Saunders wrote in her decision that Ms. Carroll’s lawsuit could move forward before an appeals court ruled on the “Apprentice” case, and she scheduled a telephone conference in the Carroll case for the end of September.

Alan Feuer contributed reporting from New York.

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