The Department of Justice has decided to continue defending Donald Trump in a case filed by E. Jean Carroll, who claims Trump raped her in the mid-90s. The case does not concern the alleged rape itself but Trump's repeated attacks on Carroll after she went public with her accusations in June 2019. Carroll sued Trump for defamation in November 2019. 

Former Attorney General Bill Barr intervened in the case in September 2020, arguing that Trump "was acting within the scope of his office as the President of the United States at the time of the alleged conduct." Barr argued that, as a result, the United States, not Trump, should be the defendant. This would essentially end the case, since the federal government is immune from this kind of lawsuit. 

What did Trump say about Carroll? A few hours after Carroll published her allegation, Trump released a statement in which he claimed he never met Carroll, accused her of lying to sell books, and suggested she was conspiring with the Democratic Party. Here is an excerpt:

Regarding the ‘story’ by E. Jean Carroll, claiming she once encountered me at Bergdorf Goodman 23 years ago. I’ve never met this person in my life. She is trying to sell a new book – that should indicate her motivation. It should be sold in the fiction section. Shame on those who make up false stories of assault to try to get publicity for themselves, or sell a book, or carry out a political agenda… 

If anyone has information that the Democratic Party is working with Ms. Carroll or New York Magazine, please notify us as soon as possible. The world should know what’s really going on. It is a disgrace and people should pay dearly for such false accusations.

At the White House the next day, a reporter asked Trump about the allegations, noting there were photographs of Carroll and Trump. In his reply, Trump suggested Carroll was paid to make up allegations about him:

[T]his was about many men, and I was one of the many men that she wrote about. It’s a totally false accusation. I have absolutely no idea who she is. There’s some picture where we’re shaking hands. It looks like at some kind of event. I have my coat on…

[T]here were numerous cases where women were paid money to say bad things about me. You can’t do that. You can’t do that. And those women did wrong things – that women were actually paid money to say bad things about me. But here’s a case, it’s an absolute disgrace that she’s allowed to do that.

During an interview with The Hill two days later, Trump addressed Carroll's allegations again. "Number one, she’s not my type. Number two, it never happened," Trump said. 

On the merits, Carroll's defamation case comes down to whether or not Trump raped her in a Bergdorf Goodman's dressing room. But Barr effectively argued that the case shouldn't be considered on the merits because, when Trump made the allegedly defamatory comments, he was performing his job as president. 

In October 2020, Barr's argument was soundly rejected by United States District Judge Lewis Kaplan. "President Trump's allegedly defamatory statements concerning Ms. Carroll [were] not in the scope of his employment," Kaplan wrote. 

Barr appealed to the Second Circuit and then Biden was sworn into office in January 2021. Would Biden's Department of Justice continue defending Trump? On Monday evening, the Department of Justice, under the leadership of Attorney General Merrick Garland, filed a 31-page brief backing up Barr's arguments. 

Why is taxpayer money is being used to defend Trump against defamation allegations related to an alleged rape that occurred years before he became president? Let's look at the arguments Biden's Department of Justice is making, and see if they hold up to scrutiny. 

Why Biden's DOJ says they are still defending Trump

The new Department of Justice brief, filed by Acting Assistant Attorney General Brian Boynton, attempts to distance itself from Trump's conduct. The brief calls Trump's remarks about Carroll not only "unnecessary and inappropriate," but also "crude and disrespectful." It specifies that "the Department of Justice is not endorsing the allegedly tortious conduct or representing that it actually furthered the interests of the United States."

Rather, the Department of Justice argues that "[s]peaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job." Therefore, when Trump addressed the rape allegations, he was acting within the scope of the presidency and can't be sued as an individual. 

The Department of Justice relies primarily on CAIR v. Ballenger, a federal case from 2006. In Ballenger, the defendant was former Congressman Cass Ballenger (R-NC), who gave an interview to a reporter about why he was separating from his wife. In the interview, Ballenger said that “his wife became increasingly uncomfortable living across the street from the headquarters of the Council on American–Islamic Relations,” which he described as the “fund-raising arm for Hezbollah.” (Hezbollah is designated as a terrorist organization by the State Department.) The Justice Department intervened, seeking to replace Ballenger as the defendant. The impact, as in Carroll's case, would be to end the lawsuit. 

The court found in favor of the government, ruling that "[s]peaking to the press during regular work hours in response to a reporter’s inquiry falls within the scope of a congressman’s 'authorized duties.'" And Ballenger's "conduct was motivated – at least in part – by a legitimate desire to discharge his duty as a congressman."

But while Biden's Department of Justice claims that Ballenger settles the issue, there is a major problem with that argument. 

The big problem with the Department of Justice's defense of Trump

While the idea that answering questions from the press is part of the job of a president or member of Congress makes some sense, it can be taken too far. As Kaplan noted his decision against Barr, taken to the extreme, the ruling in Ballenger would mean that "virtually any remarks that Members of Congress make to the press are conduct within the scope of their employment" and that Members of Congress are "effectively are immune from defamation claims… no matter how personal or private in nature."

The court in Ballenger recognized those problems and stressed that the case did not stand for the idea that members of Congress can say whatever they want to the media. Rather, the ruling was limited to the specific facts:

This case, like every judicial decision, cannot be divorced from its facts. To be sure, it involves a statement by a congressman to the press. But our ratio decidendi necessarily depends on the context in which the statement was made.

Similarly, the Department of Justice, in its new brief, argues that its argument does not stand for the proposition that a president has immunity "for any gratuitous slander in the context of statements of a purely personal nature." Rather, the Department of Justice claims that Trump's comments were not "purely personal" because they addressed an issue that had become of "concern" to some of Trump's constituents. 

This is where the Department of Justice's argument falls apart. The president has over 300 million constituents. Literally every aspect of the president's life — regardless of how attenuated it is from the job of being president — is of "concern" to some substantial number of people. The Department of Justice's arguments would confer on the president the kind of blanket immunity it acknowledges is not appropriate.

So there needs to be a line drawn that is not based on public interest but on the relationship of the comments to the duties of the president. Trump's vicious attacks against a woman who claimed he raped her have nothing to do with the office of the presidency. 

Garland is an institutionalist and he likely believes that defending Trump, in this case, is part of his duty of defending the institution of the presidency. But it may have the opposite effect. As former Southern District of New York prosecutor Elie Honig said, "I don’t think you protect the legal principle by arguing it to an absurd, an indefensible degree."