Merrick Garland's DOJ Wants to Substitute Itself for Donald Trump in Defamation Case

The Department of Justice is seeking to substitute itself as a defendant in a defamation suit taken by writer E. Jean Carroll against former President Donald Trump.

The DOJ, which is currently led by Attorney General Merrick Garland, argued in a brief filed on Monday that the department should be allowed to act as defendant because Trump's comments were made while he was an employee of the federal government.

Carroll is suing Trump, claiming he defamed her in comments where he denied sexually assaulting her in the 1990s. The lawsuit, filed in November 2019, includes a detailed account of an incident where Trump allegedly raped Carroll in the dressing room of Manhattan department store Bergdorf Goodman.

Trump told the press he had not raped Carroll, that he didn't know her and that she had made accusations against other men. Trump also suggested Carroll's claims were motivated by her desire to sell her book and said she was not his type.

Under the Trump administration, the DOJ unsuccessfully argued that it should be substituted as defendant in the case. With a new administration in office, the department is now making the same argument.

DOJ lawyers wrote in a brief to the 2nd U.S. Circuit Court of Appeals on Monday: "Then-President Trump's response to Ms. Carroll's serious allegations of sexual assault included statements that questioned her credibility in terms that were crude and disrespectful."

"But this case does not concern whether Mr. Trump's response was appropriate. Nor does it turn on the truthfulness of Ms. Carroll's allegations," the brief said.

DOJ lawyers argued that because Trump was an employee of the government at the time and his comments were made "within the scope of employment," the department should act as defendant instead of Trump personally.

"Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official's job," the DOJ brief said. "Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials' employment -- including when the statements were prompted by press inquiries about the official's private life."

A previous attempt by the DOJ to substitute itself for Trump was dismissed by a district judge in October. However, if the department is successful, the case may be dismissed as the federal government cannot be sued for defamation.

Marc Kasowitz, a lawyer for former President Trump, also filed a brief on Monday making a similar argument.

"This is not a case where a President, without prompting, randomly targeted a private citizen," Kasowitz wrote. "Rather, Carroll, a public figure, accused Trump of terrible misconduct twenty years earlier in a book and magazine article for which she sought maximum publicity. He denied her accusations in precisely the manner she expected. A short time later, she sued him for defamation. Carroll had no intention or expectation that this would be a private, personal dispute, and it was not."

Roberta Kaplan, attorney for Carroll, told Newsweek in a statement on Tuesday that they are confident the 2nd U.S. Circuit Court of Appeals would uphold October's decision.

"It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago," Kaplan said. "But it is truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thereby depriving our client of her day in court.

"The DOJ's position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward. Calling a woman you sexually assaulted a 'liar,' a 'slut,' or 'not my type,' as Donald Trump did here, is not the official act of an American president."

White House Deputy Press Secretary Andrew Bates released a statement on Monday that the White House "was not consulted by DOJ on the decision" and would not comment on ongoing litigation.

Newsweek has asked the Department of Justice and an attorney for Donald Trump for comment.

6/8/21 7.50 a.m. ET: This article was updated to include a statement from E. Jean Carroll's attorney.