黑料社

WASHINGTON 鈥� Former U.S. President Donald Trump may have an unlikely ally to defend him against lawsuits alleging he incited the U.S. Capitol insurrection: President Joe Biden鈥檚 Justice Department.

The Biden administration paved the way for that possibility, say constitutional scholars and lawyers in the cases, by arguing in an unrelated defamation case against Trump that presidents enjoy sweeping immunity for their comments while in office 鈥� and the right to a defense by government lawyers.

Biden鈥檚 Justice Department used that rationale in a surprise decision this month to continue defending Trump in a case filed by E. Jean Carroll, who contends Trump raped her 25 years ago and then lied about it while in office, defaming her.

That decision reaffirms the position the department took under the Trump administration. And it has profound implications for several ongoing lawsuits, including one filed by two U.S. Capitol Police officers seeking to hold Trump liable for injuries they suffered defending the building in the Jan. 6 attack.

Attorney Philip Andonian said he fears the Justice Department, under the same legal rationale, will also defend Trump in a case Andonian is pursuing on behalf of U.S. Representative Eric Swalwell, a California Democrat. Swalwell alleges Trump incited the deadly Jan. 6 riot in an effort to stop Congress from performing its duty to certify Biden as the election winner. Andonian called the logic behind the department鈥檚 decision to defend Trump against Carroll鈥檚 defamation suit 鈥渁larming.鈥�

The Justice Department appears to put no limits on immunity for speech by a sitting president on any matter considered 鈥渙f public concern,鈥� Andonian said.

The Justice Department declined to comment on whether it would use the same argument as a basis for intervening in the other lawsuits Trump faces. The White House did not respond to a request for comment but has previously said it had no role in the department鈥檚 decision on whether to defend Trump in the Carroll case or others.

Trump faces more than a dozen active investigations and lawsuits involving a wide range of matters, including sexual misconduct allegations, financial disputes and government probes into his business dealings and his efforts to overturn the 2020 election. But the Justice Department鈥檚 assertion of presidential immunity in the Carroll case would only be relevant to other cases involving his statements or actions while in office.

The Justice Department laid out its rationale for defending Trump in a June 7 brief in the Carroll case. After Carroll, a former magazine writer, wrote in 2019 that Trump raped her, Trump 鈥� while in office 鈥� accused her of lying and said he鈥檇 never met her. Carroll is among about two dozen women who have accused Trump of sexual misconduct. The brief argues that Trump, like any president, is covered by federal laws, including the Westfall Act, that protect federal employees from being sued for actions taken as part of their jobs.

Although Trump鈥檚 remarks were 鈥渨ithout question unnecessary and inappropriate,鈥� the brief said, he was acting within the scope of his office when he made them. 鈥淓lected officials can 鈥� and often must 鈥� address allegations that inspire doubt about their suitability for office,鈥� the argument says. 鈥淪peaking to the public and the press on matters of public concern is undoubtedly part of an elected official鈥檚 job.鈥�

鈥楾itanic鈥� legal blunder

One prominent constitutional scholar characterized the department鈥檚 position in the Carroll case as a blunder that will be difficult to undo.

鈥淚t would be very difficult for the Justice Department to change course now,鈥� said Laurence Tribe, a Harvard University constitutional law professor and a frequent critic of Trump. 鈥淭he Titanic is aimed at the iceberg.鈥�

Tribe and other critics of the department鈥檚 position say it fails to draw obvious distinctions between a president鈥檚 official conduct and matters that clearly fall outside the duties of the office. When a president says or does something illegal, they say, it does not warrant a taxpayer-financed defense by government lawyers.

Tribe served as a legal adviser for the House of Representatives鈥� second impeachment of Trump, in which the former president was accused 鈥� but eventually acquitted 鈥� of trying to overturn legitimate election results to retain presidential power. Tribe said it would be 鈥渙utrageous鈥� for the department to defend Trump against the lawsuits related to the U.S. Capitol riots 鈥渙n the basis that fomenting a violent insurrection, as charged in those suits, fell within the president鈥檚 job description.鈥�

Trump has denied any responsibility for the violence at the Capitol. His lawyers have said he was making political arguments, protected by the First Amendment, and not inciting people to riot.

Jesse Binnall 鈥� a private lawyer defending Trump in the Capitol Police case, the Swalwell case and at least two other ongoing suits 鈥� declined to comment on whether he will seek the department鈥檚 intervention on Trump鈥檚 behalf in any of those matters. Such a request would require the Justice Department to take an official position.

Binnall has echoed the Justice Department鈥檚 immunity argument in briefs filed for some of those cases, but he so far has not directly requested that the department intervene in any of them.

If the Justice Department does end up defending Trump in any of the other cases pending against him, he still would be able to retain his private counsel, allowing him to protect his own interests if they diverge from those of the government.

鈥楳atters of public concern鈥�

While Trump was president, the Justice Department argued in the Carroll case that federal law gave him a 鈥渂road grant of immunity鈥� against her lawsuit, adding that he was protected because he spoke about her in his role as president. A federal district court rejected that position in October, and the department filed an appeal in the waning days of Trump鈥檚 presidency. If the Justice Department wins on appeal, that would effectively end Carroll鈥檚 case against Trump.

Carroll鈥檚 lawyer, Roberta A. Kaplan, said it was 鈥渟hocking鈥� that the department would maintain the same argument under U.S. Attorney General Merrick Garland, who was appointed by Biden after the appeal was filed.

In testimony before Congress, Garland defended the position by saying the department had a duty to follow the law rather than to protect any administration. 鈥淪ometimes it means we have to make a decision about the law that we never would have made and that we strongly disagree with as a matter of policy,鈥� he said.

The Justice Department鈥檚 appeal in the Carroll case is pending before the 2nd U.S. Circuit Court of Appeals. The outcome could have implications for at least four other federal lawsuits pending against Trump. Three of them seek to hold Trump liable for remarks in a speech on Jan. 6 shortly before the Capitol riots. They include the case filed by injured Capitol Police officers, as well as the cases filed by Representative Swalwell and U.S. Representative Bennie Thompson, a Mississippi Democrat. Thompson alleges that Trump violated federal law by inciting his supporters to block Congress from executing its official duties.

The fourth case was filed by the Michigan Welfare Rights Organization, an advocacy group for low-income people. The lawsuit claims Trump disenfranchised Black voters by trying overturn the results in Detroit, a majority Black city, after the 2020 election.

Andonian, the lawyer in Congressman Swalwell鈥檚 suit against Trump, said he fully expects that Trump鈥檚 lawyers now will adopt the Justice Department鈥檚 reasoning to argue that the former president was speaking on 鈥渕atters of public concern鈥� in his Jan. 6 speech. Trump that day continued his false claims that the election had been stolen from him through voter fraud; assailed Vice President Mike Pence for refusing to stop Congress from certifying Biden鈥檚 win; and called for his supporters to march to the Capitol.

Andonian and other attorneys argue there鈥檚 a legal distinction between Trump鈥檚 attacks on Carroll and his incendiary speeches seeking to reverse his election loss.

Ben Berwick, a lawyer representing the Capitol police officers, said that Trump鈥檚 appearance at the Jan. 6 gathering just before the Capitol insurrection amounted to a 鈥渃ampaign rally鈥� unrelated to his official duties. That鈥檚 a different setting, he said, than the presidential news conference where Trump made the statements about Carroll.

鈥淗e is effectively acting as a candidate,鈥� Berwick said. 鈥淗e has no official role in the certification of electoral votes.鈥�

Joseph Sellers, an attorney representing Congressman Thompson in his suit against Trump, concurred that Trump had stepped well beyond the cover of presidential immunity.

鈥淚 don鈥檛 think anyone would think it鈥檚 within the scope of the president鈥檚 legitimate duties to encourage people to interfere with the functioning of another branch of government,鈥� Sellers said. 鈥淗e was promoting an insurrection and a riot.鈥�