E. Jean Carroll visits ‘Tell Me Everything’ with John Fugelsang the SiriusXM Studios on July 11, 2019 in New York.
Noam Galai | Getty Images
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 to ask 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.”
Lefcourt said he believes the president personally asked the attorney general to step into the case in some way.
“I’m sure that Trump asked Barr to ‘figure out a way to get this off my back,’ he said.
White House spokeswoman Kayleigh McEnany, during a press briefing, was asked Wednesday if the president or anyone else at the White House had discussed the intervention with the Justice Department.
“I’m not aware of any discussions that have been had,” McEnany replied.
A White House official told NBC News that the DOJ’s move was “consistent with prior precedent under the Federal Tort Claims Act.”
The official said DOJ “certified that the defamation lawsuit should properly be heard in federal court with the United States substituted as the defendant, because the President was acting within the scope of his office when he publicly responded to these false allegations.”
“The Department’s action adheres to the plain language and intent of the Statute which the courts have confirmed applies when elected officials, such as members of Congress, respond to press inquiries including with respect to personal matters,” the official said.
Lefcourt said that getting a federal judge to sign off on the removal of the case to Manhattan federal court is “not automatic at all.”
“There’d be very few judges in [that federal district] that would look favorably on this, I would think,” he said.
“When you are trying to remove it from the state court, you’re saying that the state does not have the ability to provide proper justice and due justice,” Lefcourt said.
He added that there is no reason to think that is the case in this lawsuit.
Carroll, in her own statement about the DOJ’s action, said, “President Trump knows that I told the truth when I said that he had sexually assaulted me in a dressing room at Bergdorf Goodman.”
“He also knows that he was lying when he said that he had never met me before and that I ‘wasn’t his type,'” Carroll said. “[The DOJ’s] actions demonstrate that Trump will do everything possible, including using the full powers of the federal government, to block discovery from going forward in my case before the upcoming election to try to prevent a jury from ever deciding which one of us is lying.”
“But Trump underestimates me, and he also has underestimated the American people.”
The DOJ’s surprising move comes as Trump is trying to avoid the effects of legal subpoenas for his personal and business financial records. This month, a federal appeals court is set to hear what will be Trump’s second appeal seeking to block a subpoena to his accountants for his income tax returns and other records from the Manhattan District Attorney.
Also this month, a New York state court judge will hear arguments by Trump’s company and son Eric Trump seeking to block subpoenas from state Attorney General Letitia James as part of her civil investigation into whether the Trump Organization misstated the value of properties for tax and commercial purposes.s
