“Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent,” E. Jean Carroll's lawyer said in response

By Sean Neumann
September 10, 2020 10:01 AM
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President Donald Trump
Olivier Douliery/Pool/Getty

The Department of Justice moved this week to take over a defamation case against Donald Trump, which could lead to the lawsuit against the president being completely thrown out, legal experts say.

Longtime magazine columnist E. Jean Carroll last summer accused Trump, 74, of raping her in a New York City department store dressing room in the 1990s. In November, she sued the president in a New York state court, arguing that Trump defamed her by repeatedly denying the allegations and saying she was out for money and attention.

On Tuesday, some 10 months later, the DOJ filed paperwork to move the case to federal court and represent the president — replacing his personal lawyers with government lawyers — based on the argument that he was acting within the scope of his role as a federal employee when he made the statements.

Georgetown University Law Center professor Heidi Li Feldman tells PEOPLE that the DOJ's move is not only an effort to delay the court case, which comes to a head less than eight weeks before the Nov. 3 election, "but it’s an effort to quash it."

"This is the equivalent of the president saying ‘shut up,’ " Feldman explains. "Because if the [DOJ's request] is upheld, the defamation suit cannot continue in any form because the U.S. government is now occupying the position of defendant and you can’t sue the U.S. government for defamation.”

The 1988 Westfall Act grants federal employees "absolute immunity" from wrongdoing claims against them if it's determined that at the time of the wrongdoing they were acting under the scope of their employment.

From left: E. Jean Carroll and Donald Trump

Attorney General William Barr defended the DOJ's unusual move Wednesday during a press conference in Chicago, saying "this was a normal application of the law," according to The New York Times. Barr added that he believes the only reason the move is getting widespread attention "is largely because of the bizarre political environment in which we live.”

Carroll's attorney, Roberta A. Kaplan, said in a statement Tuesday that the DOJ's effort to substitute itself as the defendant in the case against Trump was "shocking."

“Trump’s effort to wield the power of the U.S. government to evade responsibility for his private misconduct is without precedent,” Kaplan said, adding that it "shows even more starkly how far he is willing to go to prevent the truth from coming out.”

Carroll was equally direct, tweeting to Trump: "Sir, I and my attorney Robbie Kaplan, are ready! So is every woman who has ever been silenced! So is every American citizen who has been trampled by Bill Barr and the DOJ! BRING IT!"

Feldman tells PEOPLE that the move, if successful, also saves Trump from having to pay his own legal fees, as he would have to do in defending himself legally at the state level.

Now taxpayers would essentially be footing the bill of Trump's defense because the case is handled by government lawyers.

“It’s win-win for him, in his perspective," Feldman says. "It imposes costs on the taxpayer and it opens the door for some pretty dangerous precedent about the scope of the president’s employment.”

The DOJ did not respond to PEOPLE's request for comment.

The Times reports that Carroll’s defamation suit was reassigned from a state court to a federal district court in New York and will be presided over by Lewis A. Kaplan. (Kaplan was appointed by President Bill Clinton in 1994.)

The DOJ's involvement in the case comes shortly after the New York judge presiding over the state case, Verna L. Saunders, ruled that it could continue after Trump's personal attorneys sought to delay the case, the Times reported last month.

Saunders had given the go-ahead for the case to continue after the Supreme Court ruled in a separate case over Trump's tax returns, making it clear the president was not legally immune to facing civil cases in state court simply because of his status as president.

Carroll's defamation filing last November argued that, “through express statements and deliberate implications, [Trump] accused Carroll of lying about the rape in order to increase book sales, carry out a political agenda, advance a conspiracy with the Democratic Party, and make money."

The filing went on to add that Trump "also deliberately implied that she [Carroll] had falsely accused other men of rape," and "for good measure, he insulted her physical appearance.”

Each of these comments, Carroll’s complaint contended, was false and defamatory and Trump caused her “emotional pain and suffering” and damaged “her reputation, honor, and dignity” and thus her career. (Her contract with Elle, where she had written an advice column for decades, was cut short late last year — though she and the magazine disagree about the reason.)

Carroll’s rape accusation first became public last June when New York magazine published an excerpt from her memoir What Do We Need Men For? A Modest Proposal, in which she recounted in unsparing detail how Trump — then a real estate mogul and New York personality — had attacked her inside a Bergdorf Goodman dressing room in Manhattan.

Trump denied the allegations during an interview with The Hill last June, while sitting behind the Resolute Desk in the Oval Office, saying, "I don't know anything about her," despite the fact they had been previously photographed together (which he has said was purely incidental).

“I’ll say it with great respect: No. 1, she’s not my type," Trump said then. "No. 2, it never happened. It never happened, okay?”