Earlier this month, this website wondered aloud, “Why the hell is Joe Biden’s Justice Department defending Donald Trump?” The question arose from a bizarre, troubling pattern of late in which the DOJ, currently lead by Attorney General Merrick Garland, has gone to bat for the ex-president. In May, for example, the department filed a motion seeking to appeal a federal judge’s ruling that the agency had to release the memo that Bill Barr used to help clear Trump of obstruction in the Russia probe. Weeks later, Garland’s attorneys continued a push started by Barr to defend Trump in a defamation lawsuit brought by author E. Jean Carroll, with Barr’s DOJ arguing that Trump was acting in his capacity as POTUS when he responded to her rape allegations 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.” Obviously this was disturbing for a number of reasons, not the least of which being that (1) a federal judge already ruled last October that Trump was not, in fact, acting “within the scope of his employment” when he went after Carroll, leaving the DOJ under no obligation whatsoever to defend the guy (2) he is now a private citizen who claims to be very rich and can afford his own lawyers and (3) as Carroll’s attorney put it, such a position by the government “would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward.” Also, the department may have painted itself into a corner wherein it might have to defend Trump against lawsuits accusing him of inciting the January 6 attack on the Capitol.
According to a number of constitutional scholars and lawyers who spoke to Reuters, the DOJ’s decision to claim in the Carroll case that presidents enjoy basically boundless immunity for their comments in office will likely have “profound implications” for a number of ongoing suits, including ones concerning the insurrection Trump caused.
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Attorney Joseph Sellers, who is representing U.S. Representative Bennie Thompson in his suit against the ex-president, told reporters Peter Eisler and Joseph Tanfani, “I don’t think anyone would think it’s within the scope of the president’s legitimate duties to encourage people to interfere with the functioning of another branch of government. He was promoting an insurrection and a riot.”
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