E. Jean Carroll’s latest legal move against former President Donald Trump really turns up the heat on Attorney General Merrick Garland.
Carroll—who just won a $5 million verdict against Trump for sexual battery and defamation in a case filed in 2022 (“Carroll II”)—is seeking to amend her complaint in an earlier 2019 lawsuit (“Carroll I”) to include liability for Trump’s latest insults, which were broadcast live to over three million people during CNN’s Trump town hall.
During the May 10 event, Trump, fresh off losing his case to Carroll, derided her as a “wack job,” continued to insist he didn’t even know who she was, and claimed her account of the sexual assault was “fake” and a “made-up story,” all to the delight of the town hall audience, which applauded and cheered him on. Trump continued his denials and ridiculing of Carroll's claims this morning in a Truth Social post)" href="https://urldefense.com/v3/__https://truthsocial.com/@realDonaldTrump__;!!LsXw!XUFEmBPZ5yMphMRSvUQIwJz90Pet0tD7Ri5N26FC298ungmUsHXroBXu3NidS7Zs_jyfd611yo5AJ6i6Vxnzjs6P$">Truth Social post, calling her allegations “fake,” a “Made Up Story,” and “A TOTAL SCAM.”
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In light of these new potentially defamatory statements by Trump, Carroll’s legal team has asked the judge presiding over the 2019 Carroll I case to allow Carroll to amend her complaint to include these latest statements and seek damages in the amount of $10 million as well as unspecified punitive damages.
But the case may never reach a jury if Garland’s Justice Department has its way. Recall that Garland has thus far continued Trump’s DOJ tactic of seeking to substitute the federal government as the defendant for Trump in Carroll’s suit. If successful, that would essentially end the lawsuit, as under a law known as the Westfall Act, government officials are immune from suits for actions undertaken in their official capacity.
The defamatory statements at issue in the case were made when Trump was still serving as president. Then-Attorney General Bill Barr invoked the Westfall Act at the behest of the White House after first removing the case from New York state court to federal court.
Such an action by Barr and the Trump White House is hardly surprising. But Garland’s decision to follow Barr’s lead was surprising.
In a widely criticized decision, Garland chose to double down on Barr’s decision and had the DOJ intervene in the 2019 Carroll I case. His decision set off an extended chain of litigation in which the issue was fought over for some 31 months and traveled from the federal trial court to the federal Court of Appeals for the Second Circuit, and even to the local D.C. Court of Appeals before finally returning to the federal trial court, where the matter is now pending before the same judge who presided over Carroll II.
Why did Garland do it? Some clues may be found in his defense of his decision, in which he repeatedly invokes the DOJ’s impartiality, and asserts the department is not beholden to any present or past administration.
In other words, Garland is playing his familiar tune of being an institutionalist who wants to protect the DOJ’s reputation by looking impartial. But the attorney general’s decision here is a particularly short-sighted one, and despite having spent the majority of his career as an appellate judge, he appears blind to the potential legal landmines the decision may create for the DOJ’s other investigations involving Trump.
Little thought appears to have been given to the fact that Garland’s DOJ is now criminally investigating Trump’s involvement in the Jan. 6 insurrection and handling of classified documents in the Mar-a-Lago cases. Garland’s DOJ even wrote: “Under the Westfall Act, even conduct involving ‘serious criminality,’ or which runs ‘contrary to the national security of the United States,’ may fall within the scope of employment.” That statement should be music to the ears of Trump’s legal teams.
A path out of this mess was outlined for Garland in the Carroll legal team’s letter to the judge requesting to amend the complaint to use Trump’s CNN town hall remarks as a further basis for damages against the former president. In the letter, Carroll’s lead attorney, Robbie Kaplan, referenced DOJ's request that had the judge first rule on whether Carroll will be allowed to amend her complaint, in which case the DOJ would want 60 days to consider such evidence as Trump’s deposition used in Carroll II (as well as other evidence) before they submitted further legal briefings about whether Trump would be immune from the suit.
DOJ’s request signals that it is aware that Trump’s deposition—the one in which he doubled down on his Access Hollywood assertions that he was entitled as a star to grope women—may bear upon whether Trump’s insults of Carroll were truly within the scope of his duties as President of the United States. Close examination of the deposition could cause the DOJ to reconsider its position.
As Carroll’s team points out in its legal filings, the deposition shows that Trump appeared to act purely in his personal capacity in his derision of Carroll. Specifically, the deposition notes that at the time of the statements “neither Trump nor (to his knowledge) any of his White House aides had conducted any research or investigation” into Carroll, and Trump also failed to “identify any White House personnel as involved in investigating, preparing, strategizing, or preparing his June 2019 statements, or any official meetings focused on Carroll’s allegations.”
In other words, Trump’s insults and potentially defamatory denials had nothing to do with being president. It was all him.
Garland needs to consider and acknowledge this and get the DOJ out of the business of defending Trump. Stopping his embarrassing defense of Trump’s insulting of a sexual assault survivor would go a long way toward restoring the DOJ’s tarnished image.
