This was a bad but understandable argument when then-Attorney General William Barr made it. It’s a mystifying move coming from his successor, Merrick Garland. The Department of Justice renewed efforts to block E. Jean Carroll from suing Donald Trump for defamation by replacing Trump as defendant, filing a new motion appealing an earlier district court ruling that blocked the Barr-era effort:
“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,” Justice Department lawyers wrote in a brief to the 2nd US Circuit Court of Appeals. “But this case does not concern whether Mr. Trump’s response was appropriate. Nor does it turn on the truthfulness of Ms. Carroll’s allegations.”
Rather, the lawyers wrote, because they believe Trump was an employee of the government and that he acted “within the scope of employment,” the department, rather than Trump personally, should serve as defendant in the case.
“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” they wrote. “Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials’ employment — including when the statements were prompted by press inquiries about the official’s private life.”
Critics howled at the previous administration’s use of the Westfall Act to remove Trump from the case. Some falsely accused Trump of attempting to duck the costs of legal representation by using the DoJ, but that wasn’t the purpose of the move. By using the Westfall Act, the DoJ could assure the dismissal of Carroll’s case, no matter how legitimate or illegitimate of a case she had. Then-DoJ spokesperson Kerri Kupec explained at the time:
Myth: By DOJ removing the case from state to fed court, taxpayers are now on the hook for funding the Carroll defamation lawsuit.
Fact: Once the case shifts to fed court, it becomes an issue of sovereign immunity. Meaning, case over. No case, no cost. https://t.co/56OU3lkVVM
— Kerri Kupec DOJ (@KerriKupecDOJ) September 11, 2020
Judge Lewis Kaplan shot down the effort by Barr to run interference, ruling that Trump’s public comments about Carroll had no real connection to his formal duties as president:
But Judge Kaplan, an appointee of President Bill Clinton, rejected both arguments. The president, he said, is not a “federal employee” by any standard definition. And even if he were, Trump’s public rejection of Carroll’s claims could not be construed as part of his job responsibilities. In fact, as the constitutional head of government, Kaplan wrote, Trump cannot plausibly be seen as acting at any other person’s direction.
“No one gives him permission to speak. No one can require him to say, or not to say, anything at all. No one has the authority to cut him off. And the statements he makes, as well as the topics he discusses, are entirely of his own choosing,” the judge wrote. “No one even arguably directed or controlled President Trump when he commented on the plaintiff’s accusation, which had nothing to do with the official business of government, that he raped her decades before he took office. And no one had the ability to control him.”
Kaplan also pointed out that Trump had initially defended himself as a private citizen in the defamation case, with the DoJ’s entry coming late into the proceedings:
For nearly a year, this lawsuit proceeded in state court as an ordinary defamation case between Ms. Carroll and President Trump. The president defended the case as a private individual. He was represented by his personal lawyers, not by the U.S. Department of Justice (“DOJ”) or other government lawyers. And although he claimed that he could not be sued because he currently is president, the state court rejected that argument and denied a stay of further proceedings, which would have included pretrial discovery.
It was at that point that the U.S. government inserted itself into the case. It “removed” the case from the state court to this one – that is, it filed a paper certifying that a designee of the Attorney General had determined that the president’s statements to the press were part of his job as president and that this case therefore could be moved into federal court. For reasons that will appear, that certificate – whether it is right or wrong – conclusively authorized the removal of the case, and no one claims otherwise. But the DOJ did something else too, and that is what now is before the Court.
Furthermore, the Westfall Act applies only to an “employee of the Government,” Kaplan notes. That strongly implies those in a subsidiary position to the president within the federal government and not the president himself, Kaplan ruled. The Supreme Court precedent in Franklin v Massachusetts established that the presidency is not a federal agency, nor are Congress or the courts, which exempts them from the Administrative Procedure Act (ACT). If that exemption exists, then the presidency is not an “employee”:
Franklin not only prohibits courts from presuming, absent “an express statement by Congress,” that Congress “intended the President’s performance of his statutory duties to be reviewed for abuse of discretion.” By relying on Nixon, it makes clear that the same reasoning applies when a plaintiff sues the president for tort damages predicated on acts allegedly done in the scope of his employment – lawsuits that, by definition, challenge the president’s performance of his job. The government is asking this Court to do precisely what Franklin forbids: to take a statute that, at best from the government’s standpoint, is silent on the question of whether it applies to the president – and in fact strongly appears to exclude him – and hold that Congress intended to authorize lawsuits by private plaintiffs requiring federal courts to review his official acts. This would run afoul of Franklin.
The ruling seemed comprehensive at the time. After Trump lost the election, it also seemed moot. Why would Trump’s successors want to rescue Trump from a defamation suit by renewing a dodgy Westfall Act claim? Anyone predicting that a Democrat-run DoJ would follow William Barr’s hail-Mary gambit would have been laughed out of the room.
And yet, here we are. That question still hangs in the air — why in the world would Merrick Garland want to run interference for Donald Trump? Garland wasn’t required to appeal Kaplan’s ruling, after all. He’s going out of his way to back Barr’s play and dispose of Carroll’s lawsuit by the quickest and quietest route possible. Garland has essentially ratified Barr’s move, a decision that has not been lost on many Democrats and progressives over the last 24 hours. Nor the White House, apparently:
WH spox: “The White House was not consulted by DOJ on the decision to file this brief or its contents.” https://t.co/SLYWLSEVeG
— Manu Raju (@mkraju) June 8, 2021
The only reason one can credit to Garland is that he sees value in setting a precedent that allows Westfall to apply to presidents. But why would Garland see value in setting a precedent in which a thin-skinned egotistic president with bad rhetorical discipline could be protected against his own predilection for uttering insults and defamatory … oh yeah.