Fact Check

Is Biden's DOJ Representing Trump in Defamation Case — After Biden Criticized Trump For Same Thing?

The defamation suit filed by journalist E. Jean Carroll alleged that the former president lied about not raping her in the 1990s.

Published Jun 8, 2021

 (Gage Skidmore/Wikimedia Commons)
Image Via Gage Skidmore/Wikimedia Commons
According to a brief filed on June 7, 2021, the U.S. Department of Justice under President Joe Biden is — despite Biden's criticism of the move before he was president — still seeking to defend former President Donald Trump in a defamation lawsuit brought by a journalist who accused Trump of raping her.

The Biden Justice Department has filed a document in a federal appeals court seeking to take over as defense for Trump, just as the previous DOJ had planned. As of June 8, 2021, the court has yet to schedule arguments and decide on whether the federal government will indeed represent Trump.

U.S. President Joe Biden’s administration is trying to take over as the defense in a case filed against former U.S. President Donald Trump. 

In 2019, writer E. Jean Carroll accused then-President Donald Trump of defaming her when he publicly denied raping her in a department store dressing room decades ago. In late 2020, the Justice Department moved to replace Trump’s private legal team in the defamation lawsuit, and the Biden administration, despite previously criticizing the move when Trump’s Attorney General William Barr did it, is seeking to continue this official defense of Trump. 

Back in 2020, Biden said, “Can you remember any Republican president going out there, or former Democratic president, ‘Go find that guy and prosecute him'? You ever hear that? Or: ‘By the way, I’m being sued because a woman’s accused me of rape. Represent me. Represent me."

According to a brief filed with a New York federal appeals court on June 7, 2021, the Justice Department acknowledged that Trump’s remarks about Carroll were “crude and disrespectful,” but that his administration’s arguments were correct: that in issuing his denial, he was acting in his official capacity as president and therefore the federal government's lawyers, not Trump the individual's lawyers, should act as the defense— in the lawsuit. Emphasizing that they were not endorsing Trump’s alleged conduct, the brief said:

In making and defending a Westfall Act certification, therefore, the Department of Justice is not  endorsing the allegedly tortious conduct or representing that it actually furthered the [...] interests of the United States. Nor is a reviewing court making any such determinations in upholding the Department’s certification. Instead, the question in a Westfall Act case is whether the general type of conduct at issue comes within the scope of employment. Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job. Courts have thus consistently and repeatedly held that allegedly defamatory  statements made in that context are within the scope of elected officials’ employment—including when the statements were prompted by press inquiries about the official’s private life. 

The 1988 Westfall Act was passed to “re-immunize federal workers from suits in common law tort, such as negligence.” One intention of such an act was to restore protections to executive branch workers, and reinstate a procedure that anyone filing lawsuits would bring a suit against the government, and not the individual worker. 

In 2019, after Carroll accused Trump of raping her, the then-president vehemently denied the accusation in an interview with The Hill, while sitting in the Oval Office. “I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened, OK?” he said. She then filed a defamation lawsuit against him, saying Trump damaged her reputation. 

The new brief appears to ratify the move made by Barr last year. In October 2020, a district judge denied the Trump-era Justice Department’s attempt to replace Trump as the defendant in the case. Had that previous government's attempt to take over Trump’s case been successful, it would have certainly scuttled the defamation case according to most reports. The case went to the Second Circuit Court of Appeals, which is now considering the issue.

Roberta Kaplan, lawyer for Carroll responded to the brief, saying, "It is truly shocking that the current Department of Justice would allow Donald Trump to get away with lying about it, thereby depriving our client of her day in court. The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward."

The Second Court has yet to schedule oral arguments on the appeal. 

A Justice Department spokesperson declined to comment to Politico, but White House spokesperson Andrew Bates, emphasized that they played no role in the decision. “This is in active litigation, and so we refer you to the Department of Justice concerning its court filings,” he said. “The White House was not consulted by DOJ on the decision to file this brief or its contents. While we are not going to comment on this ongoing litigation, the American people know well that President Biden and his team have utterly different standards from their predecessors for what qualify as acceptable statements.”

Given that the Biden administration is seeking to take over Trump’s defense, the way the Trump administration had done so, we rate this claim as “True.” 

Nur Nasreen Ibrahim is a reporter with experience working in television, international news coverage, fact checking, and creative writing.

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