The latest anti-Trump “tempest” debunked

The Justice Department has intervened in a lawsuit brought against President Trump by E. Jean Carroll. She’s the journalist who claims that Trump raped her 25 years ago.

Carroll’s suit isn’t about the alleged rape. It’s a defamation suit based on Trump’s denial of her allegation.

To those unschooled in the law, it probably seems odd that the DOJ would substitute itself for Trump as the defendant in a suit about statements Trump made. The Washington Post wants to capitalize on that sentiment. Its lead editorial today claims that the DOJ is “sink[ing] to a new low” by acting as Trump’s “personal law firm.” E.J. Dionne chimes in, calling the DOJ “Trump’s corrupt law firm.” (Both headlines from paper edition)

But Trump denied Carroll’s allegation while he was president (and, in all likelihood wouldn’t have been asked about alleged ancient misconduct, had he not been president). The fact that the allegedly defamatory statement was uttered during Trump’s presidency justifies the DOJ’s involvement under the law.

That’s not my opinion (I had none because I’m unschooled in this area of the law). It’s the opinion of two well known law professors interviewed by the Washington Post. Steven Vladek, from the left, called the Justice Department’s legal position “a plausible argument” because courts have interpreted the scope of federal employment “very broadly, almost to the point where anything you do while on the job, courts usually treat as scope of employment.”

This doctrine supports the DOJ’s position, Vladek acknowledged. He complains only about the timing of the Department’s action, not its legal merit.

From the center, Jonathan Turley agrees that the Justice Department’s legal position is sound. He dislikes the DOJ’s move, but says it is legal and, therefore, likely to be upheld in court.

Post reporters Devlin Barrett and Matt Zapotosky do not quote any scholar who disagrees with the assessments of Vladek and Turley. Given the Post’s editorial position, I doubt it was for lack of trying to find one. I should also note that neither the Post’s editors nor Dionne cited anyone who dissented on legal grounds, either.

We’re left, then, with the unrebutted statement of Attorney General Barr. He said:

This is a normal application of the law, the law is clear, it is done frequently, and the little tempest that’s going on is largely because of the bizarre political environment in which we live.

Barr noted that similar legal arguments have been made by past presidents and vice presidents, including Barack Obama, George W. Bush and Dick Cheney. “This has become somewhat routine,” he stated.

Barr also cited a 2006 ruling by the D.C. Court of Appeals in a case where a congressman had been sued over comments he made about his pending separation from his wife. The court ruled that even that topic was within the scope of his government employment because a lawmaker’s “ability to do his job as a legislator effectively is tied, as in this case, to the Member’s relationship with the public and in particular his constituents and colleagues in the Congress.”

Thus does another Washington Post/Democratic talking point go up in flames.

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