In the age of the 24-hour news cycle, it can be difficult to remember things that happened last week, let alone several months ago. So just as a reminder, in November 2020, there was a presidential election between Donald Trump and Joe Biden, and the guy from Scranton won. This ringing any bells? A couple months later, in January, Trump left the White House and Biden took office, and then after that, Biden hired a bunch of people to run various federal agencies on his behalf. Who needs to be reminded of these events, you might be asking yourself. Isn’t everyone aware of the fact that Joe Biden is president now? And the answer is, apparently not. And it’s not just the last guy in office who’s having trouble accepting that fact; it’s some of the people working for Biden’s administration too, if the manner in which the Justice Department is being run is any indication.
Per The Washington Post:
The Justice Department’s Civil Division under President Biden is continuing the Trump-era push to represent the former president in a defamation lawsuit brought by author E. Jean Carroll, according to a Monday night appellate court filing. The lawsuit brought by Carroll—who accused Donald Trump two years ago of sexually assaulting her in the 1990s—has been stalled in litigation over whether the Justice Department had standing to represent him on the grounds that his denials in response to her claim were made while performing his presidential duties. The legal maneuver would have required a judge to find that a federal tort law that protects government employees from civil liability applies to a sitting president. Last year a federal judge in Manhattan rejected the Justice Department’s effort to enter the case on the grounds that both elements were missing from the equation.
In September, when then attorney general Bill Barr first tried to use the DOJ to kill Carroll’s suit against Trump, it was seen as yet another instance of Barr viewing himself as Trump’s personal attorney, and a sleazy one at that. As University of Texas law professor Steve Vladeck noted at the time, it was not at all standard procedure for the DOJ to defend a government official in a private matter, and it was especially unusual for Justice Department lawyers to attempt to defend Trump’s personal behavior—from before he was president!—behind a shield of “sovereign immunity.” Which is why Barr‘s involvement was seen as outrageous by both the public and federal judges, and no one actually believed the DOJ under Merrick Garland would continue to fight on Trump’s behalf.
The Justice Department’s attempted intervention on Trump’s behalf was controversial and seen by critics as an inappropriate bid by Barr to insulate the president from personal liability in what Carroll’s lawyers said was a purely personal matter — the alleged conduct having occurred decades before Trump took office. In October, U.S. District Court Judge Lewis A. Kaplan ruled that Trump did not qualify as an “employee” of the government as defined by federal law and that he was not acting “within the scope of his employment” when he publicly responded to Carroll’s allegations. Kaplan ruled that Trump’s personal lawyers would have to resume their defense of him in the ongoing lawsuit.
According to the Post, attorneys in the DOJ’s Civil Division began the appeals process before Trump left office, when “the question lingered as to whether the Biden administration would continue to advance the legal cause.” Obviously few, if anyone, thought it actually would for a variety of reasons, not the least of which being that the Justice Department presumably has better things to do than defend a man-pig—who claims to be very rich and can afford his own lawyers—for responding to Carroll’s rape accusation by saying, “Number one, she’s not my type. Number two, it never happened,“ and then also: “[She’s] totally lying. I don’t know anything about her. I know nothing about this woman. I know nothing about her. She is—it’s just a terrible thing that people can make statements like that.” (Carroll sued Trump in 2019, months after New York magazine published her claim that he raped her in a Bergdorf Goodman dressing room in the 1990s. The suit was filed in response to Trump’s public insistence that he and the veteran journalist had never met. (Separately, Carroll has exposed Trump’s alleged attacks on at least one other woman.)
While basically acknowledging that Trump is an asshole—in its brief, the DOJ says his comments about Carroll “were without question unnecessary and inappropriate”—the department nevertheless insists it must keep defending the guy as a matter of precedent. “Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” the reply filed to the U.S. Court of Appeals for the 2nd Circuit reads. “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.“
Others, like Carroll’s attorney, understandably see things differently. In a statement, Roberta Kaplan said that it was “truly shocking that the current Department of Justice would allow Donald Trump to get away with lying” about sexually assaulting Carroll, “thereby depriving our client of her day in court.” She added: “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.” In a separate statement, Carroll herself said: “As women across the country are standing up and holding men accountable for assault—the DOJ is trying to stop me from having that same right. I am angry! I am offended!”
The Carroll suit is not the first time Garland’s DOJ has stunningly gone to bat for Trump. Last month the DOJ filed an eleventh hour motion seeking to appeal a federal judge’s ruling that the department had to release the memo that Barr used to help clear Trump of obstruction in the Russia probe. (Said judge deemed Barr’s justification for clearing Trump bullshit.) As The Nation’s Elie Mystal wrote at the time:
At core, Garland (like so many in the Biden administration) is an institutionalist. This kind of appeal defends the integrity of the Department of Justice. It says the institution does not lie to the court (even if the previous administration included a cadre of professional liars). It says the institution does not provide advice on how to cover up the crimes of the president (even if that’s precisely what Barr did).
It’s important to understand that the credibility of the DOJ took a major hit during the Barr regime. There are people throughout the Justice Department who desperately want that credibility back. This kind of appeal is a fairly normal move from people who think institutional credibility must be defended at all costs. Garland’s DOJ is not looking backward at the lies, misinformation, and corruption of Barr’s tenure. They’re looking forward and are worried about the ability of the institution to function if its lawyers are afraid that their internal memos might one day become public. One way to build back institutional credibility is to defend the actions of the previous administration, even when those actions are questionable. That’s how institutionalists think.
Of course the other way to build back credibility is to prosecute and punish people who do criminal things. It’s to hold members, or previous members, of the institution accountable for their actions. It’s to embrace transparency instead of looking for a rug to sweep the trash under. The problem with the DOJ’s decision is that it is yet another indication that the quest for justice is less important to people like Garland than the defense of their precious institutions.