Yesterday, on his last day to appeal a New York state court ruling ordering him to produce documents and a DNA sample as a defendant in an ongoing defamation suit, Donald Trump did the unthinkable: He fired his private attorneys, replaced them with Department of Justice lackeys, and argued that the statements and smears he made against the woman who sued him were done in his official capacity as president of the United States.
To break it down still further: Trump is saying that demeaning and lying about a woman who has credibly accused him of rape is part of his job as president, and therefore he cannot be sued over his statements. He’s making taxpayers foot the bill for this defense. There is now no meaningful distinction between Trump the person and the US government. Somewhere, King George III is wondering why we threw away his tea.
The defamation suit Trump is trying to dodge is the one filed by author E. Jean Carroll last fall. Carroll accused Trump of raping her in the mid-1990s. In response to the allegations, which Carroll published last summer, Trump went into the usual round of angry denials that we’ve seen after each of the 25 women who have accused Trump of sexual misconduct came forward. Trump called Carroll a liar and claimed that he had never met her.
There’s a photo of the two of them together in the ’80s, because if Donald Trump says he never met someone, you can almost bank on there being a photo of the two of them together.
Carroll sued Trump for defamation last November over his apparent lies about their meeting. Trump argued, as he always does, that a sitting president is entitled to civil immunity for his private behavior. That is the argument he lost in front of a New York court last month.
It was always obvious that Trump was going to lose. We knew he was going to lose because Bill Clinton lost on the same argument more than 20 years ago. Clinton argued that as a sitting president, he could not be sued by Paula Jones over his private conduct—in that case, alleged sexual harassment. Clinton v. Jones went all the way to the Supreme Court, where the court ruled unanimously that a sitting president had no such immunity.
After losing, however, President Clinton did not enlist the Department of Justice to substitute for his private defense lawyers. He did not ask US taxpayers to support his web of lies. And if he had asked the DOJ to run interference for him, I imagine Janet Reno would have told Slick Willy precisely where he could stick it.
There is no law that allows Trump to use the Department of Justice in this way. It’s illegal in the same way it’s illegal for the president to claim the right to consummate any marriage that takes place within his realm. There’s no statute that says “droit du seigneur is prohibited in these lands,” because we don’t need one: It’s just not a power inherent to the office of the president of the United States. The presidency is an office whose powers are limited to those conferred in the Constitution, so unless the president can point to a specific constitutional grant, he does not have the authority.
You can tell Trump has no legal authority for the move because the court papers filed yesterday by Attorney General William Barr and the DOJ effectively try to invent the authority they suddenly claim to have.
The DOJ argues that the Federal Tort Claims Act grants the president, and every federal employee, immunity from private lawsuits. They then insist that since the president is claiming Federal Tort Claim immunity, he is entitled to be represented by the government.
Their argument is fallacious, and insultingly so, but you have to know a little bit about the Federal Tort Claims Act to understand why. The act does indeed grant all government employees personal immunity from civil lawsuits, but that immunity extends only to civil lawsuits arising out of their government responsibilities. It exists so that one of these live-free-or-die fools can’t sue the head of the IRS personally for “theft” over enforcement of tax laws. It exists so that the head of the zoning board doesn’t get sued by a homeowner who is angry because they can’t build a zeppelin mooring mast on top of their McMansion. It exists because we live in a litigious society and workaday government employees shouldn’t need to keep a lawyer on retainer to protect them from whatever crazy conspiracy QAnon comes up with next.
The Federal Tort Claims Act is there for government employees who do their jobs—not ones who spend their days watching Fox News while calling their sexual assault accusers “ugly” and tweeting on a toilet bowl.
When government employees are sued for their private actions, they are not protected by the statute and they do not get access to government lawyers. While there is a case of a congressman’s getting FTCA protection for defamatory statements he made regarding Hezbollah, we haven’t seen elected officials try to stretch immunity to cover their private sex lives. There have been quite a few government employees accused of sexual assault over the years, and none of them have had the DOJ come riding to their rescue. It would, in fact, be unworkable if every government employee protected by the Federal Tort Claims Act got a government lawyer every time they were accused of private misconduct.
I fully expect Trump to lose this argument, just like he’s lost all the other ones in this case. It’s a bad argument and would set an untenable precedent for future presidents and for every government employee in the country.
Still, focusing simply on the faulty legal reasoning of the argument somehow fails to grasp the full depth of Trump’s and Barr’s debasement of their offices. The statement from Carroll’s lawyer, Roberta Kaplan (who, full disclosure, I believe is one of the best attorneys in the country), starts to get at the true despotic nature of what is going on here. Kaplan says:
Realizing that there was no valid basis to appeal that decision in the New York courts, on the very day that he would have been required to appeal, Trump instead enlisted the U.S. Department of Justice to replace his private lawyers and argue that when he lied about sexually assaulting our client, explaining that she “wasn’t his type,” he was acting in his official capacity as President of the United States. Even in today’s world, that argument is shocking. It offends me as a lawyer, and offends me even more as a citizen. Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent, and shows even more starkly how far he is willing to go to prevent the truth from coming out.
We can’t lose sight of the fact that Trump is being accused of rape. We can’t forget that Trump is bringing the full weight of the federal government down upon a single woman to defend himself from rape accusations after the usual tactics of screaming, shaming, and bullying failed to bring about the desired result. Trump, the defendant, is getting due process, but that’s not enough for him. He wants immunity from ever having to even answer for these charges, and he’s now willing to use lawyers from the Department of Justice—which is there to prosecute mobsters and terrorists—to achieve his goals.
We also can’t forget that should this dumpster fire of an argument make it all the way to the Supreme Court, there will be at least one person who has also been credibly accused of rape waiting there to protect the president.
We can’t overlook the personal trauma Trump is willing to cause Carroll—and we also must think about the damage Trump is willing to inflict on the whole country. If this is what Trump is willing to do when he realizes he has no valid basis to appeal a lawsuit, what will he be willing to do when he realizes that he has no valid way to win an election? What will he do should he lose that election and realize he has no valid way to stay in power? If Barr is willing to use the Justice Department for this kind of lawlessness to protect Trump from having to sit in a deposition, what will Barr be willing to do to help him stay in power?
And what will Secretary of Defense Mike Esper be willing to do? What will Chairman of the Joint Chiefs of Staff Mark Milley be willing to do? What evidence do we have that these men aren’t every bit as craven and depraved as Barr? What evidence do we have that the sycophantic Republican Party has the strength or dignity to stand up to Trump’s abuses of power?
History tells us that it is during the last days of a despotic regime that things get really bad. It’s when the strongman starts to lose his grip on power that his paranoia and desperation lead to the most suffering and the highest body counts. As Trump starts to feel the legal and electoral walls close in around him, he’ll become ever more dangerous.
If nobody in his party or his military is willing to stand up to Trump and his ruling junta now, the transition of power, whenever it comes, will not be peaceful.