DOJ Tries To Step In To Trump Defamation Case To Get It Dismissed; Claims His Statements About Alleged Rape Were Part Of His Presidential Duties

from the say-what-now? dept

Earlier this week, you may have seen a bunch of headlines about Bill Barr's DOJ trying to step in to take over a defamation case against the President. There is so much crazy about this story that it seemed worthwhile to dig in.

There have been a rash of somewhat strange defamation lawsuits over the last few years, often connected to the "me too" movement, in which someone calls out a person for bad behavior, the accused person denies it, and then the accuser sues for defamation. To be honest, most of these feel like SLAPP suits, even if I'm sympathetic to the accuser. A mere denial of something should not be nearly enough to reach the stage of defamation. One of these lawsuits was filed by E. Jean Carroll against President Trump. Carroll claimed that Trump sexually assaulted her in a dressing room in a Manhattan department store many years ago. Upon being asked about the accusations, Trump denied it, saying they were "totally false" and claiming (falsely) that he "never met this person in my life." Based on those statements, Carroll sued in NY state court.

Again, I actually think the case is pretty weak as a defamation case. Many of the claimed statements are not remotely possible of reaching the level of defamation. Many of them take statements that Trump made and stretch the intended meaning of them quite far. Others take statements that are clearly Trump's (bonkers) opinion, rather than factual. It is, overall, a weak case and will almost certainly not be a winning case for Carroll. That said, the case has rolled on (remember: New York has a terrible anti-SLAPP law, one of the worst in the country -- and while the legislature has passed an improved law, I don't believe Cuomo has signed it yet). Most recently there was a discovery dispute. Carroll is seeking a sample of Trump's DNA as part of her discovery requests. Trump's personal lawyers sought to delay discovery, but failed to do so last month.

That puts the President in a bit of a pickle. Even though he'd likely win the lawsuit in the end, it appears he'd really rather not provide Carroll with a sample of his DNA. The insane solution? Bill Barr and the DOJ suddenly jump into the case on behalf of Trump and try to remove it to federal court, taking over for Trump's private lawyers. Now you may be saying "wait, what?" and I agree with you. But, a little background here is necessary. First, there's the Westfall Act, which requires that if the Attorney General "certifies" that the actions a federal employee is being sued over were "acting within the scope of his office or employment," then the DOJ steps in to represent that federal employee. This is done to avoid having federal employees randomly sued and having their life upended for doing their job.

But... this is not the usual case in which you'd see this. For this to apply, Bill Barr has to claim that Donald Trump saying he didn't know E. Jean Carroll, didn't rape her, and a few other things were within the scope of his role as President of the United States... and what the actual fuck? How is that even remotely a thing? The filing by the DOJ doesn't go into much depth on this, it just says that because the DOJ says so, it must be so:

Acting pursuant to 28 C.F.R. § 15.4(a), the Attorney General’s delegate has certified that President Trump was acting within the scope of his office as President of the United States when he publicly denied as false the allegations made by Plaintiff.

In a footnote, the DOJ tries to give Barr deniability by saying he delegated his authority here to Torts Branch Director James Touhey, but come on. Everyone knows that this is Barr doing the President's personal business. The full certification is just Touhey saying "yup, he denied the rape as part of his job" in slightly more official words:

I, James G. Touhey, Jr., am the Director of the Torts Branch, Civil Division, United States Department of Justice, responsible for most civil litigation under the Federal Tort Claims Act. I have read the complaint dated November 4, 2019, in the above-captioned case. Pursuant to 28 U.S.C. § 2670, and by virtue of the authority vested in me pursuant to 28 C.F.R. § 15.4, I hereby certify, on the bases of the information now available with respect to the incidents alleged in the complaint, that Defendant Donald J. Trump was acting within the scope of his office as the President of the United States at the time of the alleged conduct.

Honestly, this bullshit should haunt James G. Touhey Jr. for the rest of his life as a lawyer. It is pure bullshit.

And while some people are claiming that this is the DOJ trying to take over the "defense" of Trump in this case, that's not it at all. It's trying to get the case dismissed. Federal employees are effectively immune from defamation claims under the very same Westfall Act, because of sovereign immunity. In the case of Suzanne Brown v. Katherine Schoeneman, someone tried to sue an FBI employee for defamation, but the DOJ stepped in under the Westfall Act (making the new case Brown v. U.S.) and got the case dismissed thanks to sovereign immunity for defamation claims.

Of course, that ruling does say that the DOJ's certification can be challenged, and you can bet that Carroll's lawyers are going to challenge every last word of Touhey's certification -- so I assume that's the next step here. For what it's worth, the case has been assigned to Judge Lewis Kaplan. I honestly don't know much about Judge Kaplan other than the fact that last month we wrote about him issuing quite a benchslap to infamous copyright troll Richard Liebowitz, so based on that small sample size, he appears to be a judge not willing to put up with much shit. That said, the DOJ is not the same as Richard Liebowitz.

Also, as pointed out by Ken White, there are some cases that suggest the DOJ could win this argument. In CAIR v. Ballenger, the DC Circuit said that since answering questions from the press is part of the job, then answers about a scandal outside of your official duties could be considered within the scope of the office. So, because the press was talking to him in his role as President and he answered as such, his answers about a claim of rape from decades ago are now a part of his job as President. This argument makes about as much sense as saying that his comments were defamatory in the first place, so it's a toss up here over which of these arguments is dumber.

Of course, some of you may be asking why did the DOJ just step in now if the case was filed back in November of last year. The answer is almost certainly that Trump REALLY REALLY does not want to give a DNA sample to Carroll. There may be legit reasons why he would not want to do that, and I still think her defamation case is weak, but it's is truly fucked up that he then gets to pervert the Justice Department with the help of Bill Barr, to try to squeeze out of the case.

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Filed Under: defamation, discovery, dna, doj, donald trump, e. jean carroll, westfall act, william barr


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  • icon
    That One Guy (profile), 10 Sep 2020 @ 8:42am

    Someone doth protest too much

    The answer is almost certainly that Trump REALLY REALLY does not want to give a DNA sample to Carroll.

    Outside of some batshit paranoia, which I wouldn't put past him, I honestly cannot think of a reason he would be so desperate to not provide a dna sample here that he'd order the DOJ to intervene other than because he knows that it would confirm something he really doesn't want validated, which just leads me to believe that the accusations might very well have some truth to them.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 10 Sep 2020 @ 9:03am

      Re: Someone doth protest too much

      Probably more than some truth, and damned that pesky concept of statutory limitations or we wouldn't be having a conversation about defamation and the quirks of sovereign immunity, but would be talking about a criminal accusation where the 'request' for DNA would carry a whole lot more weight.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Sep 2020 @ 11:02am

        Re: Re: Someone doth protest too much

        One thing to think about: once the DNA is out there, others would probably request access to it for matching against other cases.

        And I think it's pretty much settled fact that Trump has had extramarital sex. Many. Times.

        reply to this | link to this | view in chronology ]

    • icon
      Coffee U (profile), 10 Sep 2020 @ 10:03am

      Re: Someone doth protest too much

      Possibly there's a dress, or clothing with dna alleged to be Trump's that hasn't been yet mentioned, that could be used as proof that yeah, he did more than meet her.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Sep 2020 @ 10:08am

        Re: Re: Someone doth protest too much

        There is a dress with a DNA sample according to Carroll's lawyers.

        Of course this does beg the question of if there are other people hiding in the wings that would like to get a DNA sample to prove other things about Dear Ole Donny, but that's getting into conspiracy theory land.

        reply to this | link to this | view in chronology ]

      • identicon
        David, 10 Sep 2020 @ 11:36am

        Re: Re: Someone doth protest too much

        The funny thing is that in case of a DNA match on the dress, he'd likely rather admit to having attempted rape (he'd word it differently, kind of like he words past hires that did not work out to his satisfaction) than wearing the dress.

        I mean, ok, it's not funny. But yeah.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 10 Sep 2020 @ 11:24pm

          Re: Re: Re: Someone doth protest too much

          "The funny thing is that in case of a DNA match on the dress, he'd likely rather admit to having attempted rape"

          ...then every one of his fans who were still using the Lewinsky affair as a reason not to vote for Hillary will suddenly be pro-rape, and not see the slightest bit of hypocrisy.

          reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 10 Sep 2020 @ 3:43pm

        If DNA tests were cheap

        We'd be able to compare alleged-trump-incident clothing examples with each other and get a profile of Subject A who's been around doing lots of naughty, naughty things.

        Then we could use other forms of detective work and figure out by process of elimination who had the motive and opportunity to be at all those incidents.

        At least the Antifa Jetsetter Ninja hypotheses would be entertaining.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 11 Sep 2020 @ 1:17am

          Re: If DNA tests were cheap

          "At least the Antifa Jetsetter Ninja hypotheses would be entertaining."

          Ah, the ones who abseiled, impossible mission-style, from the ceiling of the white house bed chamber, rubbed a quickie off the president while he was in a drug-induced sleep, and then meticulously moved around staining selected articles of clothing with the presidential baby syrup just so people could start suing poor Donald?

          ...did I just invent a right-wing conspiracy theory? 😨

          reply to this | link to this | view in chronology ]

    • icon
      crade (profile), 10 Sep 2020 @ 10:20am

      Re: Someone doth protest too much

      I am loath to come to trump's defense for anything, but hasn't the the "if you have nothing to hide you have nothing to fear" argument been beaten to death countless times on techdirt?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 Sep 2020 @ 11:19am

        Re: Re: Someone doth protest too much

        Yes, and the identity of the speaker of said quote doesn't at all change how dumb it is.

        reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 10 Sep 2020 @ 12:33pm

        The argument is not “you have nothing to fear if you have nothing to hide”, but rather “you’re acting incredibly defensive over something you’ve said is bullshit”. Trump would likely submit his DNA to the court if he truly believed in his own innocence. That he hasn’t done so makes me think that Carroll has a case — and that Trump doesn’t want her to have a stronger case.

        reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 10 Sep 2020 @ 1:55pm

          Re:

          Regardless of who you are, is it really a good idea to volunteer information unless necessary when you are the defendant?

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 10 Sep 2020 @ 2:02pm

            Re: Re:

            There is no "volunteering" involved here.

            reply to this | link to this | view in chronology ]

          • icon
            Stephen T. Stone (profile), 10 Sep 2020 @ 3:10pm

            is it really a good idea to volunteer information unless necessary when you are the defendant?

            A fair point, but still — Trump’s, shall we say, “aggressive defensiveness” over this issue (among others) speaks to the mind of a guilty man. That he has consistently tried to escape court proceedings for everything from defamation claims to investigations into his finances says a lot about how he views his own innocence.

            reply to this | link to this | view in chronology ]

            • identicon
              Rocky, 10 Sep 2020 @ 4:38pm

              Re:

              Trump always do the "aggressive defensive", it's one of the lessons he learned from Roy Cohn. Hell, Trump settled with the DOJ after he broke the Fair Housing Act in '73 and afterwards he and Cohn stand outside the court saying it was a win for Trump. It's all about getting his narrative out - even if it's totally divorced from reality.

              Considering Trumps documented attitude and actions towards women, I'd say it's highly likely he sexually assaulted Carroll in one way or another.

              reply to this | link to this | view in chronology ]

        • icon
          crade (profile), 14 Sep 2020 @ 6:19am

          Re:

          Those two quotes are just the same argument phrased by one side and then the other. You say you aren't guilty, so why are you being so defensive about us letting me search X? Maybe I just don't trust you.

          reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 11 Sep 2020 @ 1:21am

        Re: Re: Someone doth protest too much

        "...hasn't the the "if you have nothing to hide you have nothing to fear" argument been beaten to death countless times on techdirt?"

        Indeed it has, which is why it should be up to an impartial court to make the call on whether Trump would need to supply a DNA sample or not.

        What is rather more problematic is the way the DOJ has tried to move the case into another jurisdiction using an old law which enables it to do so only if you consider it in the scope of the official duties of a sitting president to refuse to cooperate with a rape investigation...

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Sep 2020 @ 10:49am

      Re: Someone doth protest too much

      I think it's pretty reasonable that any person, even if they were 100% not guilty, would be against being forced to give a DNA sample in a court discovery case. Assuming they had they had the money to pay for a lawyer to fight over it.

      And even if you think it's not a big deal to provide a DNA sample I think if you thought about it for a moment you'd easily imagine a situation where you wouldn't find compliance with a annoying yet simple legal order to be a clear example of avoiding evidence of guilt or unreasonable.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 10 Sep 2020 @ 2:44pm

        Re: Re: Someone doth protest too much

        It's the context that changes things up, along with Trump shooting himself in the foot, as it would be one thing to object to the discovery request(which they appear to have done), but assuming I've got the timing correct it looks like Trump basically brought the DOJ in in an attempt to get the case tossed entirely after his lawyers failed to get discovery delayed, which strikes me as rather like the standard practice of copyright extortionists, that being 'as soon as the case goes against you cut and run'.

        Adding to that, and going back to the own-goal, by asserting not only that the claims weren't true but that he'd never met the woman he walked right into the 'trap' wherein her legal team apparently claims that she has evidence to refute that second claim(which would bring the first into question), and all they need to do so is get a DNA sample from him, such that he basically painted himself into a corner and made that sample very relevant to the accusation in question.

        reply to this | link to this | view in chronology ]

  • identicon
    David, 10 Sep 2020 @ 9:47am

    One can only hope

    that it will not take a complete reboot like with Nazi Germany to exorcise and rectify the complete collapse of the separation of powers that Trump has not started but turned into a special political art form.

    Stick a fork in the U.S. republic, it's done.

    reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 10 Sep 2020 @ 9:17pm

      Re: One can only hope

      We must hope that it won't take that level of reboot since that type of reboot doesn't tend to happen without losing a war and, before the United States loses a war for its survival the government would likely attempt nuking its enemies into oblivion.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 11 Sep 2020 @ 1:24am

        Re: Re: One can only hope

        "...before the United States loses a war for its survival the government would likely attempt nuking its enemies into oblivion."

        Well, yeah, but in this case those "enemies" would be actual american citizens located in all major US cities.

        You're right, let's hope the house of cards falls as quietly as it did when the USSR collapsed.

        reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 10 Sep 2020 @ 9:54am

    Even if this isn't a procedural slam-dunk (and I think that it might be good for at least extended delays), it leads to an interesting question.

    Since the US Government is substituting as the defendant, how will it be providing the DNA sample?

    reply to this | link to this | view in chronology ]

    • identicon
      David, 10 Sep 2020 @ 10:30am

      Re:

      Well, the DNA of the government is the Constitution, but the government has been pretty careful not leaving traces of it behind. Sort of like the protagonist in the movie "Gattaca".

      reply to this | link to this | view in chronology ]

  • icon
    DB (profile), 10 Sep 2020 @ 11:36am

    I'm guessing that the attorneys already know the answer to the DNA match.

    There are several close relatives that wouldn't mind providing a private limited-use sample, and there are plenty of ways to surreptitiously get other samples (albeit without those results being admissible as evidence).

    This case is transparently a way to litigate something well past the statute of limitations. But Trump jumped into the obvious trap with both feet, creating a fresh issue. Now Barr is down in the mud, trying to pry open that trap.

    reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 10 Sep 2020 @ 12:22pm

    Unfortunately, this prez thinks raping people is part of his job.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Sep 2020 @ 2:19pm

    I would hate to have to rule on a series of bad arguments by two sides, especially when constrained to only the facts and arguments either side wishes to produce. The claim looks stupid, and the Trump/DOJ position is even more ridiculous somehow. Seriously, we don't have a better and less shady argument than "sorry, sovereign immunity, you don't even get to make a claim"?

    The whole DNA thing... for one, a DNA sample for a defamation claim? WTAF? Secondly, there sure are times that production of a DNA sample are certainly warranted, but too often (always?) things like DNA are capriciously and arbitrarily compelled, and that information and possibly actual sample lives forever somewhere, regardless of the outcome of a trial (if there even is one) and eventually gets accessed for unrelated reasons, possibly by someone without the proper authority to do so.

    What a conflagration of an alley full of dumpsters.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 10 Sep 2020 @ 6:38pm

    With all of the bullshit Trump says about people, If this doesn't get tossed, Trump is in serious trouble. The lawsuits will be prolific.

    reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 11 Sep 2020 @ 9:04am

    Too late...

    Bill Barr has so perverted the DoJ at this point that this action is simply par for the course to him. It will take years to weed out the rot and corruption that Trump and Barr have infested into this government.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    restless94110 (profile), 11 Sep 2020 @ 10:35am

    Right

    And Trump is right again. This crazed female lunatic was directly defaming the presidency. She was interviewed and national tv and was so clearly lying how could any person believe in this nonsense. Another horrid goblin needing to be repelled.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 11 Sep 2020 @ 2:00pm

      "crazed female lunatic"

      Poe factor -4!

      I'm pretty sure that's sarcasm, but only because it's so spot on.

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 11 Sep 2020 @ 6:52pm

        Re: "crazed female lunatic"

        I'm pretty sure that's sarcasm

        If it's sarcasm, then this is a parody account and everything he's said on TD is satire. This comment is 100% consistent with what this guy spouts on a regular basis.

        https://www.techdirt.com/user/restless94110

        reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 11 Sep 2020 @ 9:37pm

          Not a parody account...

          That's too bad. I usually don't check accounts to see what else they've written, but take each post on its own (a habit from the chans where every post is anonymous).

          Whether sarcastic or sincere, it's 100% crackpottery. If if would intentional, it would imply our world was slightly smarter.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 14 Sep 2020 @ 1:54am

            Re: Not a parody account...

            "If if would intentional, it would imply our world was slightly smarter."

            Unfortunately the "restless94110" account has a long, long history of presenting themselves as a willfully blind racist with more than a few outright horrifying views on life.

            One of his latest gems has him comparing "prostitution" (paid sex), with "trafficking" (sexual slavery) and stating with confidence that any day now people will stop using the word "trafficking" because it's identical to "prostitution" anyway.

            I wish I could say that his refusal to admit the difference between voluntary sex and sex slavery was the worst he had on offer.

            So unfortunately Poe does not apply. He's either a horrible person or a horrible person who thinks he's just trolling very persistently.

            reply to this | link to this | view in chronology ]


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