Welcome back to “Politics, Not Law,” where legal process is once again asked to do the heavy lifting for democratic self-determination in a free republic.
In this week’s episode, we have the anti-Trump world in full froth over the Justice Department’s intervention on the president’s behalf in a lawsuit brought against him by E. Jean Carroll. A longtime advice columnist at Elle magazine, the 76-year-old Ms. Carroll alleges that, 24 or 25 years ago — she says she can’t be sure of the year . . . or the time of year — Donald Trump, then a flamboyant New York real-estate magnate, raped her in a fitting room at Bergdorf Goodman, a tony department store in midtown Manhattan.
Only the lawsuit is not about rape.
At the time she alleges she was sexually assaulted, Carroll neither went to the police nor said anything publicly — though she says she told a couple of friends about it. Rather, nearly a quarter-century later, when Trump was president, Carroll included the allegation in a book she published, entitled What Do We Need Men For? Inevitably, the media asked Trump about her claim, and he strenuously denied it. So Carroll sued him . . . for defamation.
Interestingly, Carroll’s book also makes a similar allegation against Les Moonves, the former CBS bigwig. Like Trump, Moonves has been the subject of unproven sexual-abuse claims (though he has resigned over some of them, and the network is withholding his megabucks severance package pending its investigation). Carroll says Moonves accosted her in a hotel elevator sometime before February 1997, when the profile for which she was interviewing him was published by Esquire — a profile in which she makes no mention of the alleged incident (because, she says, she is one of the “Silent Generation,” who does “not dwell on the past”). Again like Trump, Moonves strenuously denies the claim, but Carroll does not appear to have taken legal action against him.
As for Carroll’s tawdry Trump tale, there is slightly more to it, on both sides.
Trump being Trump, he can never just deny something and leave it at that. In an interview with The Hill, he snarked that the allegation could not be true because Carroll is “not my type” — a variation on a go-to response Trump has used to parry similar allegations, though this time he noted that he was saying it “with great respect.” In the interview and in a statement put out by the White House, the president maintained that Carroll was lying, insisting that he had never met her and knew nothing about her.
Carroll quickly produced a photograph in which she and Trump are both depicted at a 1987 party, alongside their (now former) spouses. The snapshot seems cordial enough, but, of course, it establishes neither that Trump and Carroll were much acquainted with each other nor that he would remember her many years later — either at Bergdorf’s or today. In any event, it is not defamatory to deny knowing someone (at least in these circumstances — and maybe in any circumstances). The gravamen of Carroll’s defamation claim is Trump’s assertion that she is not telling the truth about the rape allegation.
Is that defamation? If Carroll had pressed charges when the accusation was still actionable, and Trump had pleaded not guilty (which he’d be entitled to do), the implication of the plea would be that she was lying, even if Trump had not said so in so many words. That is to say, this is not much of a defamation case. As a tort claim, defamation is a pretext here. Carroll’s real objective is to press a sexual-assault claim that is otherwise time-barred — both civilly and criminally.
Now, don’t get me wrong; the law allows her to do this. A New York State court has been entertaining her civil lawsuit. But let’s keep it real: While Carroll and the battalions of anti-Trumpers cheering her on are now feigning outrage at the legal gamesmanship of the president and his Justice Department, there is only a court case at all because Carroll is engaged in legal gamesmanship, too.
Now, about all that maneuvering. For nearly four years, the president has taken his share of lumps in court proceedings. This time, though, he holds the trump card, as it were. Under federal law, government officials may not be hauled into state court anytime they are accused of committing civil wrongs in the course of their official duties. A statute, known as the Westfall Act, generally permits them to move the case into federal court and, more importantly, to substitute the United States as the defendant. The theory is that when public officials act in their official capacity, their actions are the government’s actions.
Under the Westfall Act, as construed by federal courts, the ambit of official acts is extremely broad. No surprise there: Statutes are written by members of Congress, and this one protects members of Congress (as well as officers of the executive and judicial branches). High-profile officials become subjects of public concern, and that affects how they do their jobs. The courts have thus recognized that these officials’ statements to the media — even if unsolicited and involving personal rather than public matters — are deemed to be actions within the scope of their governmental duties.
And here is the kicker: If the United States is the defendant, the doctrine of sovereign immunity applies. Under the Federal Tort Claims Act, the government has not consented to be sued for defamation. Therefore, the Justice Department’s action this week, which transfers Carroll’s lawsuit to federal district court in Manhattan, almost certainly means the case will be thrown out.
As you’d expect, there are gusts of indignation over this. Attorney General Bill Barr chalks them up to “the bizarre political environment in which we live.” DOJ’s intervention here is “routine,” and the AG explained that similar motions were made on behalf of Presidents Obama and Bush 43, as well as Vice President Cheney. But these days, as the Wall Street Journal’s Bill McGurn dryly observes, “the Trump justifies the means” — unlike past presidents, this one is portrayed as if he were not entitled to the rights, prerogatives, privileges, and immunities of the office.
Wait, you say, Obama, Bush, and Cheney were not accused of rape. Fair enough, and it is not within the realm of imagination that such an accusation would be leveled at any of those gentlemen. So then, you figure libertines like Trump and, say, Bill Clinton should not be in that same staid category? Okay, that’s fair enough, too, and maybe it should make a difference — politically. Legally, though, it’s beside the point.
Whatever you may think of Trump, he is not accused of rape — not in the legal sense of accuse. The accusation against him is defamation, which is significantly less serious. If Trump had been formally accused of a sexual assault, federal law would not have helped him. When Bill Clinton was formally accused by Paula Jones of sexual harassment prior to his presidency, there was no immunity. He was civilly sued and ultimately paid an $850,000 settlement. The law is not concerned about the character of the federal official implicated in a civil claim; the questions are strictly (a) whether the official was acting in his governmental capacity and (b) whether the tort involved is one for which the United States, as the sovereign, has consented to be sued. End of story.
Well, not quite the end. Let’s be real again. E. Jean Carroll’s case is not about rape, but her story is. Her claim is stale and there are significant credibility problems with it, just as there are with the allegation Tara Reade has leveled against Joe Biden. But it’s not like these women are outliers. There are lots of disturbing allegations about the candidates. Character flaws abound. And it’s exhausting.
But that’s a political issue, not a legal one. If our political processes continually produce flawed candidates, that’s not a problem of the law’s making. We should stop expecting lawsuits to fix it.