While campaigning last year, then-candidate Joe Biden didn’t seem very enthusiastic about his prospective Justice Department prosecuting prospective civilian Donald Trump. It’s “a very, very unusual thing and probably not very … good for democracy, to be talking about prosecuting former presidents,” the future president said in August.
But it would have been hard to imagine that Biden’s Justice Department would wind up defending Trump in court, which has become a strange theme of the first few months of Attorney General Merrick Garland’s tenure. The latest example came Monday night, when the DOJ filed a brief with a federal appeals court in New York claiming that Trump could not be sued for defamation by E. Jean Carroll, who has accused Trump of raping her, because the defamatory comments in question were made while Trump was president.
“Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office,” the brief read. “Officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives,” the lawyers for the Justice Department added.
Carroll’s lawyer said the brief was “truly shocking,” according to The New York Times. Carroll herself criticized the move, as well. “As women across the country are standing up and holding men accountable for assault, the D.O.J. is trying to stop me from having that same right,” she said in a statement.
In 2019, Carroll wrote that Trump raped her in a department store dressing room in the mid-1990s. Trump not only denied he raped Carroll, saying she was not his “type,” he denied ever having met her. Months later, Carroll sued Trump for defamation in state court, which is where the case sat until last September, when then-Attorney General Bill Barr transferred the case to federal court after a state judge rejected Trump’s attempt to halt the case. Trump, who was then in the heat of his re-election campaign, now had the Justice Department at his back, as well as the fact that federal law also happens to prohibit government employees from being sued for defamation.
The Justice Department is apparently still at his back, and not just on the Carroll case. Paul Butler pointed out a few examples recently in The Washington Post.
Biden’s DOJ is also fighting to conceal information Barr used to mischaracterize the Mueller report before it was released to the public. Barr argued the memo he used fell under attorney-client privilege, but a federal judge disagreed, as did a group of Democratic senators who wrote a letter to Attorney General Merrick Garland urging him to release an unredacted version of the memo. This did not happen.
Then, late last month, the DOJ asked a judge to throw out a lawsuit against Trump, Barr, and other officials for the violent manner in which protesters were cleared away from Lafayette Square in Washington, D.C., last June, so that Trump could have a photo op at an adjacent church. At the time, Biden criticized Barr for ordering the protesters cleared, bashing how the Justice Department “deployed the U.S. military, tear gassing peaceful protesters” in service of Trump’s reelection.
Biden also criticized Barr for transferring Carroll’s case from state to federal court, accusing Trump of using the Justice Department as his “own law firm.”
“Can you remember any Republican president going out there, or former Democratic president: ‘Go find that guy and prosecute him’? You ever hear that? ‘By the way, I’m being sued because a woman’s accused me of rape: Represent me. Represent me,’ Biden said during a town hall event last October. “What’s that all about?”
It’s a good question.