When the Department of Justice announced in 2021 that it would continue to represent Donald Trump in his defamation case against journalist E. Jean Carroll, it set up years of discomfort for the federal government in defending a former president accused of rape.
On Tuesday, the Justice Department said it would no longer shield Trump from the costly and contentious legal battle.
DOJ lawyers notified a federal judge in New York City that they would not assert that “Donald J. Trump was acting within the scope of his office and employment as President of the United States” when, in 2019, he denied ever raping Carroll—and added a pigheaded rebuttal that she wasn’t even his type.
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Carroll sued him for defamation, and the lawsuit has been tied up for years, as Trump has hid behind the incredible force of the nation’s Justice Department and asserted that he was deserving of immunity as a government official.
After Trump left the presidency and continued calling her a deranged liar, Carroll sued him a second time—a case that quickly went to trial this year in which jurors swiftly concluded he did, in fact, sexually attack her in the dressing room of a high-end Manhattan clothing store in the 1990s.
But the first case continued to linger, with the federal judge asking the DOJ to clarify whether its scholarly lawyers considered that Trump was acting within his official duties when he ripped into Carroll several years ago. Even though the nation’s legal system has found that the former president was a sexual abuser, it was still up to the Justice Department to determine whether his lies from the White House were somehow protected by federal policy.
While the details of this other defamation case are just as clear and sordid, its fate is mostly determined by this one question: whether Trump is protected by the Westfall Act—a law that says federal employees are entitled to absolute immunity when acting within the scope of their employment.
In April, a District of Columbia appellate court clarified that real question is whether the conduct of a federal employee—in this case, Trump—“is actuated, at least in part, by a purpose to serve” the employer.
The DOJ put it simply: No way.
In a letter filed with the court on Tuesday, Brian M. Boynton, principal deputy assistant attorney general, said the DOJ “declines to issue a new Westfall Act certification” to protect Trump.
While he acknowledged that DOJ lawyers had no evidence of Trump’s “state of mind” when he made offensive comments about Carroll, government attorneys determined that Trump was on a personal vendetta—evidenced by the fact that he kept it up after leaving office.
“The prior history between Ms. Carroll and Mr. Trump supports a determination that the former President’s statements were not sufficiently motivated by a purpose to serve the government,” he wrote. “And a jury has now found that Mr. Trump sexually assaulted Ms. Carroll long before he became President. That history supports an inference that Mr. Trump was motivated by a “personal grievance” stemming from events that occurred many years prior to Mr. Trump’s presidency.”
U.S. District Judge Lewis Kaplan was waiting to hear back from the DOJ before moving ahead on this other defamation case, so the DOJ memo paves the way for yet another costly trial—and verdict—against Trump.
