Attorney General Merrick Garland is not the anti-Bill Barr.
That is the takeaway one of Barr’s sharpest critics had in response to the news that Garland’s Department of Justice will keep trying to swat away a lawsuit against Donald Trump by famed columnist E. Jean Carroll, who claims that the former president defamed her by falsely denying that he raped her in the dressing room of the department store Bergdorf Goodman in the 1990s.
“I think it’s a mistake by Garland, and I think it’s part of a broader pattern, where he has taken a middle road rather than affirmatively undoing some of the abuses of the Barr Justice Department,” former Southern District of New York prosecutor and CNN’s senior legal analyst Elie Honig, the author of the soon-to-be released book on Barr titled “Hatchet Man,” told Law&Crime in a phone interview.
When Barr was still in power last October, a federal judge rejected the Justice Department’s claim that Trump had been acting in his official capacity as president of the United States when he told reporters: “She’s not my type,” referring to the woman accusing him of rape. The Justice Department appealed that ruling in the waning days of the Trump administration—and under Garland’s stewardship, persisted in its efforts to offer Trump a defense on the taxpayer dime.
If the government succeeds, Carroll’s lawsuit filed in state court will remain federal jurisdiction, where it is unlikely to survive.
In its appellate brief, the Justice Department offered no excuses for Trump’s “crude and disrespectful” comments and instead focused on what it called the “institutional interests of the federal government.”
As a former prosecutor, Honig said that he understands why the government seeks to protect public officials from acts taken in their official duties—to an extent.
“I benefited from that when I was a federal prosecutor,” Honig said. “I understand it, but I think this goes too far. And so I don’t think you protect the legal principle by arguing it to an absurd, an indefensible degree.”
Ross Garber, an associate professor at Tulane Law School, found the Justice Department’s defense a bridge too far.
“I understand from an institutional point of view, how they could have arrived at that position,” Garber told Law&Crime in a phone interview. “I think the contrary argument, though is more persuasive—in other words, the argument that that the former president, when he made his comments, was not acting within the scope of his his duties as President.”
After the Justice Department first articulated its view of the scope of the president’s duties last year, Carroll’s lawyer Robbie Kaplan starkly summarized: “There is not a single person in the United States — not the president and not anyone else — whose job description includes slandering women they sexually assaulted.”
She echoed the same theme on Monday night: “Calling a woman you sexually assaulted a ‘liar,’ a ‘slut,’ or ‘not my type’ — as Donald Trump did here — is NOT the official act of an American president.”
Though Carroll’s lawyer expressed confidence in the appeal, the Justice Department’s move will further delay resolution Carroll’s litigation. When the case was first filed in state court, Trump’s attorneys disputed jurisdiction, sought stays and refused to provide documents to Carroll’s counsel. Trump has tried to fend off production of his DNA to see if it matches the genetic material that Carroll says Trump left on her dress.
Honig noted that the Carroll case is far from the only example of Garland’s Justice Department maintaining the “status quo,” in many respects. The Justice Department recently appealed U.S. District Judge Amy Berman Jackson’s ruling ordering the release of 2019 legal memo that Barr cited as the reason prosecutors would not pursue obstruction charges against Trump following the release of the Mueller Report. Additionally, in Honig’s view, the DOJ has not been aggressive enough against those believed to have planned and aided the Jan. 6th attack on the Capitol.
On Monday, the Justice Department sought to overturn a California law banning private immigration detention facilities in that state, even though phasing out these jails was a stated goal of President Joe Biden on the campaign trail.
Read the DOJ’s brief below:
(Images via Astrid Stawiarz/Getty Images for Glamour, MANDEL NGAN/AFP via Getty Images)
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