White House asked DOJ to intervene in Trump rape defamation suit by E. Jean Carroll, taxpayers will pay damages if agency loses, Barr says

The White House requested that the U.S. Justice Department launch a last-minute, controversial effort to intervene in a lawsuit in which President Donald Trump is accused of defaming E. Jean Carroll, a writer who says Trump raped her years ago, Attorney General William Barr revealed Wednesday.

Barr also said that American taxpayers — and not Trump personally —  will be responsible for any monetary damages awarded Carroll, if she proves her claims against the president, and if a judge agrees to allow the Department of Justice to handle the case.

Barr defended the DOJ’s intervention in the case as proper and warranted by both the law and recent practice by other administrations.

The DOJ on Tuesday filed a legal action seeking to transfer Carroll’s defamation lawsuit against Trump, which was filed in New York state court, to Manhattan federal court.

The action also asks that the United States government replace Trump as the defendant in the case.

The case was assigned Wednesday to U.S. District Judge Lewis Kaplan, who was appointed to the bench by President Bill Clinton. Kaplan has yet to schedule a hearing on the DOJ’s request to remove the case from state court.

The request comes two months before the U.S. presidential election, but 10 months after Carroll sued Trump.

Carroll sued Trump last November after he said she was lying when she claimed in a published account that he had raped her in a Manhattan department store in the mid-1990s. Since the suit was filed in Manhattan Supreme Court, Trump has been represented by a private attorney, not a DOJ attorney.

But in its filing Tuesday, the DOJ said that it had certified that Trump “was acting within the scope of his office or employment at the time of the incident out of which the claim arose.”

“The United States will file a motion to substitute itself for President Trump in this action for any claim for which the [Federal Tort Claims Act] provides the exclusive remedy,” the DOJ said in its filing in federal court.

Barr, during a press conference in Chicago on Wednesday, defended the filing, and said it was done at the behest of the White House.

He said that the DOJ’s request to transfer the case, and to replace Trump as the defendant, was authorized by the Federal Employees Liability Reform and Tort Compensation Act, which is also known as the Westfall Act. That act protects government employees from civil liability for acts related to their official duties.

Barr said that an appeals court decision has ruled that the law protects government employees even in cases where a claim involves them being asked questions by the press that “relate to their personal activity.”

The attorney general has said that the process for invoking the act that has been developed is for the employer of the employee asking the Justice Department to certify that the act applies to the employee for the lawsuit that was filed.

“That process was followed in this particular case,” Barr said, after referring to the White House as Trump’s employer.

“This was a normal application of the law, the law is clear, it is done frequently,” Barr said.

“And the little tempest that is going on [the controversy over the action] is largely because of the bizarre political environment in which we live.”

Asked by a reporter if “taxpayers would be on the hook” if the DOJ is allowed to take over the case, and loses it — as opposed to Trump — Barr indicated taxpayers would foot the bill for any damages.

“As they always are under Westfall,” Barr said. “That’s the statute.”

Despite Barr and the DOJ’s matter-of-fact portrayal of the intervention, Carroll’s legal team and lawyers not connected to the case blasted the move.

“The DOJ was not meant to serve as the president’s personal in-house counsel, particularly on the taxpayer’s dime,” said Joseph Tacopina, a New York defense attorney who is not involved in the case.

“Trump calling an alleged victim of rape … a liar is not an act in his official capacity,” said Tacopina.

“Although ad hominem attacks on members of the regular public may be a regular occurrence in the Oval Office these days, Article II of the Constitution does not include within the functions of the presidency the role of Chief Mudslinger.”

Carroll’s lawyer, Roberta Kaplan, noted in a statement that the DOJ’s move came a month after a state court judge rejected Trump’s claim that “he is immune from a private lawsuit concerning defamatory statements he made about a sexual assault he committed in the 1990s.”

“As a result of that decision, Trump was soon going to be required to produce documents, provide a DNA sample, and sit for a deposition,” said Kaplan. She accused Trump of then enlisting the Justice Department to file its action and claim he was acting in his official capacity when he denied the rape claim.

“Even in today’s world, that argument is shocking,” Kaplan said.

Gerald Lefcourt, another top New York defense lawyer, who is not connected to the case, called the DOJ’s action “pretty much unheard of.”

“Just because you’re president, if you hit a cop or rape a woman, that doesn’t mean that the Department of Justice defends you,” Lefcourt said. “The DOJ is not your lawyer.”

Lefcourt said the DOJ’s move is part of “a pattern of doing Trump’s legal work” by U.S. Attorney General William Barr.

Lefcourt pointed to the DOJ’s sudden and stunning reversal of its position in the criminal case of former national security advisor Michael Flynn, who has pleaded guilty to lying to the FBI about his conversations with a Russian diplomat.

After pushing for Flynn to be sentenced and fighting his efforts to get the case dismissed, the DOJ last spring sought to drop the prosecution. Trump had long been critical of the case against Flynn.

“Now [Barr’s] going to court to help Trump in his personal affairs, such as this defamation suit,” Lefcourt said, referring to the Carroll lawsuit.

“It makes them [the DOJ] look ridiculous.”

Article source: https://www.cnbc.com/2020/09/09/justice-department-intervenes-in-trump-and-e-jean-carroll-case.html