Donald Trump is a documented philanderer. Both of his first two marriages ended in divorce, as a result of infidelities on his part. Payments were made to pornographic actress, Stormy Daniels were made during his 2016 campaign, in exchange for her silence on the affair. If half of the 23 accusations of sexual misconduct against him have merit, his dalliances have often veered into the criminal realm. One such claim, by writer E. Jean Carroll, who alleges Trump raped her in an NYC department store in the mid-1990’s, is currently on the docket of a New York state court. A judge recently rule that the suit may proceed while Trump holds office. In an obscene instance of corruption, the Department of Justice, headed by Trump lackey William Barr, has filed a motion to take over the case from the president’s personal lawyers.
Carroll was a nationally syndicated columnist, best known for her long-running ‘’Ask Jean’’ column in Elle magazine. According to her lawsuit, in the fall of ’95 or spring of ’96, Trump followed her into the dressing room of a Manhattan department store and forced himself on her. She remained silent for over two decades, revealing the incident in her 2019 memoir, What Do We Need Men For: A Modest Proposal. The criminal and civil statutes of limitation had expired by the time she came forward with the allegation. When confronted with the story, Trump vehemently denied the assault and hurled a barrage of crude barbs her way. He also denied having ever met her despite photographic evidence of the two together.
In calling Carroll a liar, Trump, she contends, defamed her. Trump’s response and its consequences are the crux of the civil suit against him. The suit contends Trump’s denials and attacks were defamatory, per se, and Carroll has suffered direct harm as a result. Her advice column was dependent on a high volume of compelling letters from readers from which to choose to respond. When the most powerful man on the planet branded her a liar, it damaged her credibility and adversely effected her readership. In February (well after the suit was filed), Elle magazine severed ties with her altogether. Carroll is seeking to have Trump publicly retract the inflammatory statements against her in addition to monetary damages to be decided in court.
Trump’s lawyers, as they have done often in his presidency, made broad claims of immunity in attempting to quash the lawsuit. His defense team had previously argued that a president is absolutely immune from any criminal inquiry in fighting subpoenas for his tax records. The judge in that case rejected the argument and allowed the subpoenas to be enforced. The judge presiding over this case cited the decision in allowing the lawsuit against Trump to proceed. After the case was allowed to move forward, Trump likely would have been compelled to produce relevant documents and subjected to a deposition. It is also probable that he would have been forced to submit a sample of his DNA, to compare to the semen stains on Carroll’s unlaundered dress from the night of the assault.
As the deadline to appeal the ruling approached, the White House asked the Department of Justice to intervene in the case. The Federal Tort Claims Act provides federal employees with immunity from civil liabilities related to their official duties. Utilizing the FTCA, the Justice Department has filed a motion to replace Trump’s lawyers on the case. It is the position of Attorney General William Barr that when Trump denied the rape accusation and insulted Carroll’s physical attractiveness, it was in his official capacity as president. If their motion is successful, it would substitute the US government for Trump as the defendant in the case. It would also make the American taxpayer liable for any damages should Carroll win her case. The move also has the potential to kill the lawsuit and muzzle Trump’s accuser before she has her day in court. Under the doctrine of sovereign immunity, the federal government must consent to be sued, which it has not done in this instance. It should be noted that this corrupt hail mary has been chucked out in the last week, while Carroll filed suit more than ten months ago. The legal maneuver is likely to fail as it requires a judge to accept that demeaning a woman who has leveled an accusation is part of a president’s official duties. However it does have the real potential to delay the case, and thus, and further discovery until after November’s election.
Barr, in textbook fashion, offered a sober legal explanation for his machination. The AG said this week that the FTCA provides an exclusive remedy in this case and that his application of the law is normal. No precedent exists for a president utilizing the DOJ to take his place in the firing line; the statue typically pertains to cases involving more mundane federal employees, such as a postal worker running over a pedestrian on his mail route. The argument is made even more dubious considering the Justice Department has made the exact opposite argument to allow Trump to block his critics on Twitter. In a case relating to the president’s use of the social media site, the department argued Trump is free to block who he likes as his feed constitutes private speech outside his official duties. The Justice Department’s independence from the Executive Branch is hardly debatable at this point when it will argue political messaging from Trump’s cyber bully pulpit are as a private citizen, but when he denigrates a woman who accused him of rape in the mid-’90’s it is within the scope of his office.
If Barr’s intervention in this case were a one-off, it would raise an eyebrow and smack of political favoritism. Regrettably, it is part of an increasingly audacious pattern of perverting his office to his boss’ benefit. He preempted the Mueller report by downplaying the seriousness of its findings just before its release. He irregularly intervened in the criminal cases of Trump associates Michael Flynn and Roger Stone, dropping the case against Flynn after two guilty pleas and inexplicably reducing Stone’s sentence before Trump granted him clemency. These are but the most high-profile of his betrayals. By all accounts Barr is a sharp legal mind and a highly competent lawyer. He is also an ideologue who believes in almost absolute executive power. Those convictions have been on full display in his time as AG, bending over backwards to enable Trump’s most heinous behavior.