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Why Is Biden’s Justice Department Defending Donald Trump Against E. Jean Carroll’s Defamation Suit?

E Jean Carroll being interviewed by CNN after being largely ignored over the weekend.

One of the best things about seeing Donald Trump booted from office (besides, you know, literally everything) was seeing his attorney general Bill Barr get booted with him. Barr was undeniably terrible in the degree to which he sought to put his loyalty to Trump over the good of the county. But his replacement, Merrick Garland, is now illustrating just how committed these institutions are to protecting themselves and the ugliness that comes with that commitment.

Back in late 2019, writer E. Jean Carroll filed a lawsuit against Trump, claiming he defamed her when he denied her allegations that he raped her in the 1990s. The Department of Justice tried to get involved, petitioning to replace Trump as the defendant in the case with the U.S. government. A judge struck that down and Biden even criticized the attempt during his presidential campaign, saying Trump was treating the DOJ like his “own law firm.”

But now Biden’s DOJ is getting involved in the case, taking up Trump’s defense.

A brief filed by the DOJ Monday doesn’t defend Trump’s actions–in fact, it explicitly condemns them. The document opens by saying “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.” So why is the department getting involved? To protect not Trump, but the “institutional interests of the federal government.” (Of course, this does protect Trump as well, in a huge way.)

In arguing that the Justice Department should represent Trump, that administration invoked the Westfall Act, which protects federal employees from lawsuits regarding potential crimes committed while carrying out their official duties. That would essentially kill Carroll’s entire case, since the Westfall Act doesn’t allow civilians to file suits against federal employees.

Citing Westfall here means that when Trump repeatedly called Carroll a liar, suggested she was being paid to accuse him of rape, denied having ever met her, and said she wasn’t his “type” as a defense against accusations of assault (thereby equating physical attraction with sexual assault), he did so in his official capacity as president–that all of those things were somehow part of his duties.

And the Biden administration is in agreement.

“When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as President,” reads the DOJ’s brief. “Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office.”

This isn’t the first time the new Justice Department has taken up its predecessor’s attempts to directly protect Trump. Last month, the department appealed a ruling ordering it to turn over a legal memo related to Manhattan District Attorney’s ongoing criminal investigation into the Trump Organization. Garland’s DOJ released only a portion of the memo and then filed the appeal to avoid presenting the full document.

At the time, The Nation’s Elie Mystal had a great explanation of this potentially perplexing approach:

Why is Garland’s DOJ blocking the full release of the memo? Why is it running this kind of interference for Barr’s Justice Department? Well, because at core, Garland (like so many in the Biden administration) is an institutionalist. This kind of appeal defends the integrity of the Department of Justice. It says the institution does not lie to the court (even if the previous administration included a cadre of professional liars). It says the institution does not provide advice on how to cover up the crimes of the president (even if that’s precisely what Barr did).

“It’s important to understand that the credibility of the DOJ took a major hit during the Barr regime,” Mystal continues. “There are people throughout the Justice Department who desperately want that credibility back. This kind of appeal is a fairly normal move from people who think institutional credibility must be defended at all costs.”

So Garland is protecting that institution by defending the last president’s possible crimes. The other option, as Mystal writes, would be “to hold members, or previous members, of the institution accountable for their actions”–to make it clear that the institution would not tolerate criminals in its ranks. But Garland isn’t doing that.

In a statement, a White House spokesperson said that the “White House was not consulted by DOJ on the decision to file this brief or its contents.”

The statement continues: “And while we are not going to comment on this ongoing litigation, the American people know well that President Biden and his team have utterly different standards from their predecessors for what qualify as acceptable statements.”

Basically, Biden doesn’t approve of what Trump did but he’s keeping his distance from the DOJ’s decision to interfere in this case. But Biden also knew exactly what a diehard institutionalist Garland was when he appointed him to this position.

In a statement, Carroll’s lawyer Roberta Kaplan said:

It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago. But it is truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thereby depriving our client of her day in court. The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward.

(via Politico, BuzzFeed News, image: CNN)
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Vivian Kane (she/her) is the Senior News Editor at The Mary Sue, where she's been writing about politics and entertainment (and all the ways in which the two overlap) since the dark days of late 2016. Born in San Francisco and radicalized in Los Angeles, she now lives in Kansas City, Missouri, where she gets to put her MFA to use covering the local theatre scene. She is the co-owner of The Pitch, Kansas City’s alt news and culture magazine, alongside her husband, Brock Wilbur, with whom she also shares many cats.