On Monday, the Justice Department took its most controversial position yet under Attorney General Merrick Garland, when lawyers for the department confirmed that they will continue to defend Donald Trump in the defamation suit brought by E. Jean Carroll.
Carroll sued Trump in New York state court in November 2019 after Trump publicly denied Carroll’s allegation that he had sexually assaulted her in the 1990s. Carroll was about to get some crucial discovery from Trump when, in September of last year, the department intervened on Trump’s behalf, transferred the case to federal court, and moved to substitute the government for Trump as the defendant—on the theory that Trump’s comments about Carroll were made in “the scope of his employment” as the president. The result of this maneuver (if successful) would likely be the dismissal of Carroll’s case, since the federal government cannot be sued for defamation. Last October, the presiding federal judge rejected the department’s arguments in a 59-page opinion, but the department appealed that ruling to the 2nd Circuit Court of Appeals. It was not previously clear that Garland’s Justice Department would maintain the position that the department had first taken under Bill Barr.
In a brief filed with the 2nd Circuit on Monday, though, lawyers for the Justice Department argued that the case “does not concern” whether Trump’s response to Carroll “was appropriate” and does not “turn on the truthfulness of Ms. Carroll’s allegations.”
“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” they continued. “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.” Typically, you would expect Garland to have been briefed on a filing like this—about a litigation position of significant public concern that was inevitably going to generate public scrutiny—and to have either affirmatively signed off on it in advance, or to have decided to leave it to other officials (perhaps career officials) to resolve, which is, in any event, the functional equivalent of being comfortable with the outcome.
The filing came as a shock to many legal observers. After all, many of them had criticized the department’s position under Barr in scathing and unambiguous terms—calling it “ludicrous,” “sheer lunacy,” “malevolence tempered by incompetence,” and questioning how the argument could even be made “in good faith.”
As a strictly legal matter (and as I have noted elsewhere), the argument was not as frivolous as it may have seemed. As the government’s lawyers wrote on Monday, “Elected public officials can—and often must—address allegations regarding personal wrongdoing that inspire doubt about their suitability for office,” and for better or worse, some federal courts have effectively immunized federal officials for statements in such contexts. The question is not so much whether the federal government can make this argument in defense of Trump—indeed it can, and the government may very well prevail on appeal—but whether it should. In other words, it is the sort of discretionary legal judgment that attorneys general often have to make.
Garland did not have to endorse Barr’s decision—and I wish he had not—but unfortunately, Monday’s filing was not entirely surprising. Garland breezed through the confirmation process with little skepticism among liberals, who mostly seemed happy to see Garland ascend to the position as the nation’s top law enforcement officer after he had been prevented from taking a seat on the Supreme Court by Sen. Mitch McConnell back in 2016. But as Garland’s confirmation hearing suggested, he appears to be inclined toward maintaining the status quo and focused on the department as an institution, even though, as I noted at the time, “a well-developed vision of how the law should operate—and a sincere commitment to the rule of law—is not the same thing as a vision of justice.”
This has become clearer still since Garland took office, perhaps most notably when the department continued Barr’s effort to withhold an Office of Legal Counsel memo that outlined the DOJ’s reasons for not alleging that Trump committed obstruction of justice following the Mueller probe. The decision to maintain that legal posture came even after the presiding judge complained that lawyers from the department had tried to mislead her. Like the decision to continue the defense in the Carroll case, it would have been eminently defensible—and eminently reasonable—if the Garland DOJ had come out the other way and simply released the OLC memo, perhaps on the theory that the situation is so unique that it does not have serious long-term implications for different cases, particularly those involving decent public servants.
At the moment, observers seem to be scrambling to make sense of Garland’s decision-making, and it remains to be seen whether the decision in Carroll’s case might finally force a more serious reckoning. Shortly before Monday’s filing, one commentator questioned “to what lengths the Justice Department will go to defend the Trump administration’s abuse of power—with its primary concern being preserving that power for the Biden administration and beyond.” Another concluded on Tuesday that Garland “seemingly has no plans to become the anti-Barr.” Others have argued that “at this point, Garland himself is beyond saving.”
I wouldn’t go that far, except to say that Garland’s decisions seem to reflect a far too cramped view of what people have taken to calling “institutionalism.” The department, for instance, generally defends federal employees in lawsuits where there is a defensible claim that the employees’ actions occurred in the course of their work; it generally takes expansive positions on questions of executive authority and power; and if you resort to a high enough level of abstraction—like, say, “speaking to the public and the press on matters of public concern”—it is often possible to argue that a decision in some particular instance should be placed in the lineage of broadly defined principles. A former judge who likes to invoke the rule of law may be particularly susceptible to these tendencies, since the concept is often associated with stability and impartiality.
The question that Garland has now placed front and center for even his most ardent supporters is whether and to what extent he will at some point identify a serious limit to this way of thinking when it comes to Trump—a truly dangerous man and former president who should not be afforded the continued luxury of being treated like any other federal official.