Why is the Biden DOJ lawyering on Trump's behalf in the Carroll case?

What began as a private lawsuit defended by private lawyers morphed into a suit against the United States government itself under what’s known as the Federal Tort Claims Act. People cannot sue the government without what’s called a waiver of sovereign immunity—i.e., the government must agree to be sued. For torts like negligence, when the claim is made against an “employee of the government while acting within the scope of his office or employment,” the FTCA allows plaintiffs to get money from the government for certain torts committed by its employees. Procedurally, the government must “certify” that an employee was acting within the scope of his employment, which it did for Trump here. (Note that it’s Trump’s statements about Carroll that count for purposes of the suit—not the alleged rape, which she claims happened when he was a private citizen.) When the government certifies, it effectively steps into the shoes of the individual defendant—here, Donald Trump. Hence, by virtue of this maneuver, Carroll is now suing the U.S. government, not Trump himself. But because the FTCA’s waiver of sovereign immunity does not extend to claims “arising out of” slander or libel, like defamation, if DOJ wins this appeal, Carroll’s defamation suit likely goes away. (The statute of limitations on a criminal rape case has expired, so this could be the end of the road when it comes to accountability for what happened to her.) As a matter of fairness and justice, this is an outrage. But that’s not what Garland is worrying about.