It came as little surprise last year when it was reported that the Department of Justice was seeking to take over Trump’s defense in his legal battle with E. Jean Carroll, the former Elle columnist who is suing him for defamation—Trump was still president. At the time, the DOJ argued Trump was “within the scope” of his presidential office when he denied Carroll’s rape allegations.
But Trump will receive the same treatment from Biden’s DOJ, which would grant the former president “some degree of immunity,” according to the Daily Beast.
Though DOJ officials clarified that the department was not “endorsing the allegedly tortious conduct or representing that it actually furthered the interests of the United States,” it took essentially the same position as it did under Trump.
“The President is an ‘employee of the government,’” reads a Monday brief. “Nothing in the text, purpose, or history of the statutes suggests that they exempt from their coverage the President of the United States.”
This assessment amounts to an existential threat for Carroll’s case, which she filed in 2019 after Trump accused her of leveling false allegations against him “for publicity.” The DOJ’s previous attempts to claim immunity for Trump as a government employee have been thwarted in court, with a judge ruling that the rape allegations have “no relationship to the official business of the United States.”
But if the DOJ succeeds this time it would result in Carroll’s suit getting thrown out since civilians can’t legally make libel claims against federal officials who made the remarks in an official capacity.
Of Trump’s more than two dozen accusers, Carroll and Summer Zervos are the only two to take legal action against the former president. (Zervos has also sued Trump for defamation.) Their cases have always been precarious: Sexual assault-related litigation rarely results in justice for survivors, and defamation cases are usually settled outside of court. When the president is the alleged perpetrator, this power imbalance is even more pronounced; it has been a small victory each time Carroll’s and Zervos’s cases have been allowed to proceed against Trump at all.
“It is disappointing to see this administration continue to defend Trump’s bankrupt legal position,” Zoe Salzman, an attorney representing a coalition of advocacy groups supporting Carroll, told the Daily Beast. “To agree with DOJ in this case is to send a chilling message to survivors of sexual assault and discourage them from holding their assailants accountable. The Second Circuit should affirm the District Court’s well-reasoned decision.”