Jurisprudence

When You’re the President, They Let You Do It

In responding to E. Jean Carroll’s lawsuit, Trump argues that his sexist disparagement counts as a presidential act.

E. Jean Carroll talks to reporters outside of a courthouse.
E. Jean Carroll in New York on March 4. Seth Wenig/AP

Donald Trump won the presidency despite ample proof that he abuses women. Multiple women had credibly accused him of assaulting, harassing, and degrading them by the time he was running. Four years ago, we all heard him boast of acts so vile on the Access Hollywood tape that even some Republicans denounced him—before rejoining the fold by insisting that Trump the man (a vulgar predator) is really not the same person as Trump the president (a constitutional conservative). That fictional distinction allowed spineless Republicans to celebrate their president’s actions (more far-right judges! Fewer Muslims!) without fretting over his cruel and fundamentally profane personal and ethical life.

On Tuesday, however, Donald Trump’s Department of Justice declared that Trump the man and Trump the president are formally one and the same. In an unprecedented and jaw-dropping motion, DOJ attorneys asserted that Trump’s choice to disparage women, which he has done while in office, falls within “the scope of his employment” as the president. As a result, they claim, the DOJ should replace Trump’s private attorneys in journalist E. Jean Carroll’s defamation lawsuit, which would force the courts to throw out her case because one cannot sue the federal government for defamation. Trump and his Justice Department aren’t just claiming immunity from legal consequences from such statements because he is the president. They’re saying those statements are part of his job.  

As a refresher, Carroll sued Trump in state court in New York for defamation in November of 2019, when, in response to a book she had published alleging he raped her in a Bergdorf Goodman changing room in the 1990s, the president responded that he had never met her (a photograph showed the two together) and that she was fabricating her claims just to sell books. Trump also said the advice columnist was “not my type” as a horrifying means of refuting the rape claim. Carroll’s suit claimed these statements were false, defamatory, and damaging to her reputation, and she sought punitive damages. As part of her suit, she requested a DNA sample to compare Trump’s with DNA found on the dress she says she was wearing when the assault occurred.

As the Trumpian playbook requires, the president first attempted to get the lawsuit thrown out, arguing that New York courts did not have jurisdiction over him because he doesn’t reside in the state. But in January, Justice Doris Ling-Cohan of the New York Supreme Court in Manhattan rejected that claim. Just last month, Justice Verna L. Saunders denied another effort to delay the litigation, finding that the U.S. Supreme Court’s July decision regarding a grand jury’s subpoena for Trump’s financial records permits a state court to exercise jurisdiction over a sitting president. Trump’s filings in the Carroll litigation were due this week. But on Tuesday, the Justice Department moved to replace Trump’s personal lawyers and to defend him, citing the Federal Tort Claims Act, which gives federal employees immunity from certain lawsuits.

The filings include a notice of removal from state to federal court and a motion seeking an order substituting the United States as defendant for President Donald J. Trump in the litigation. These filings were signed by Jeffrey Bossert Clark, acting assistant attorney general, as well as James G. Touhey Jr., director of the torts branch, and attorney Stephen R. Terrell. Notably, nobody in the Southern District of New York, to which the case is being removed, signed the filings. Attorney General William Barr’s Justice Department attempts to explain why this suit should be defended in federal court, with the DOJ acting on behalf of Trump, at taxpayer expense. Citing the Westfall Act as legal authority, Justice Department lawyers argue that if the attorney general certifies that a federal employee has been sued for acts that fall within the scope of his employment, then that suit must be removed to federal court. In turn, the original defendant will be replaced with the United States. Because the “Attorney General’s delegate” has certified that Trump was acting as president “when he publicly denied as false the allegations made by Plaintiff,” the case must be moved to federal district court and the United States must become the defendant.

This maneuver is essentially a kill switch. Federal law does not permit plaintiffs to sue the United States for defamation. So if the DOJ’s motion succeeds and Trump gets swapped out as defendant, Carroll’s lawsuit will die.

Stop and consider for a moment that the Justice Department is arguing—in the words of Roberta Kaplan, Carroll’s attorney—that “when [Trump] 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.” Beyond the mere act of, once again, conscripting the Department of Justice into acting as his personal Roy Cohn, Trump now has his attorney general claiming that when Trump insults, demeans, and belittles women, he is “acting within his scope of office as President.” This logic suggests that if Donald Trump were to say, just for instance, that women let him grab their private parts because when you’re famous, they let you do it, some attorneys employed by the government would likely argue that he is saying that in his capacity as president as well. In other words, the stuff that once horrified you in the Access Hollywood tapes four years ago? Now those kinds of comments could just be considered “presidential acts.”

The cases cited for support essentially codify into law the despicable doctrine of Boys Will Be Boys. The strongest case comes from the U.S. Court of Appeals for the District of Columbia Circuit in 2006, involving Cass Ballenger, a Republican congressman from North Carolina, who scored immunity for comments he made under the “scope of his employment” when he told a reporter he and his wife separated in part because of her “dissatisfaction with life in Washington, D.C.” Why was she dissatisfied? Because, Ballenger said, she was “uncomfortable living across the street from the headquarters of the Council on American-Islamic Relations after the September 11th attacks,” because, Ballenger falsely claimed, CAIR is the “fund-raising arm for Hezbollah.” The organization sued the congressman for these lies, but a federal court threw out the case, finding that talking to a reporter was part of Ballenger’s “authorized duties.” The casual Islamophobia? That was just him doing his job.

The practical purpose of substituting the government as defendant in the Carroll case is to delay and to slow-walk and, eventually, to get it tossed altogether. The larger purpose is to reaffirm that the Justice Department serves as Donald Trump’s personal fixer, and that the things Donald Trump did decades before he was in office are immune from legal consequences because today he is president. The larger damage is that Trump is making an affirmative argument that the office of the president can be used to disparage women, and that itself will shield the occupant from consequences.

The consequence of the logic applied here is unavoidable. It’s no longer just that—as his attorney once actually claimed—Trump can shoot someone on Fifth Avenue and be immune from indictment, perhaps even investigation, because he is president. (This summer, the Supreme Court affirmed that this theory was wrong, but in practice there would be no consequences for Trump doing so.) The new claim is a good deal more horrifying still: He could stand on Fifth Avenue and shoot someone, and it would be an official presidential act.

If there is any silver lining here, it’s that the U.S. Supreme Court has ruled that courts can review the attorney general’s claim that a federal worker was acting within the scope of his employment. It will be up to the federal judiciary, then, to determine whether Trump is protected by the relevant law, though the statute shields employees of a “federal agency,” and the presidency is not an agency. Even if the courts decide Trump falls under the statute, they still have to decide whether he was acting within his authorized duties when he disparaged Carroll. That claim is as laughable as it is offensive, resting on a hopelessly cynical and debauched view of the presidency as an office from which the commander in chief can trash-talk his alleged former victims when he should be leading the nation he was elected to serve. At long last, Trump’s defenders are formally acknowledging that the sexual predator on the Access Hollywood tape is who the president really is.