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Donald Trump has pushed many boundaries of “presidential behavior”, but there has rarely been any move as audacious as his claim – made through the Department of Justice – that he denied a rape accusation in his official capacity as US president.
The shock argument was made by justice department lawyers in filings in the case of E Jean Carroll, a writer with the Atlantic. She is suing Trump for defamation after he denied her allegation that he raped her in a Manhattan department store in the 1990s.
Trump claimed she lied about the incident to sell a book, and that she was “not my type”. Carroll’s complaint says he damaged her reputation.
Last month the department, under the leadership of the Trump super-loyalist William Barr, stunned the legal world by substituting itself for the president as defendant in the case. The department has now set out its argument behind the unusual tactic.
Department lawyers claim Trump should not be sued in the defamation action because he made his contentious remarks about Carroll in the course of “an official White House response to press inquiries”. Even though he was commenting on an event that took place decades before he was elected, Trump made his remarks as part of his official business, they argued.
They went on to assert that it was appropriate for the department to be involved because the allegations raised by Carroll could harm the US government.
“The rape of a woman is a violent crime … and, if believed, even false allegations that the president committed such a crime could obviously impact the president’s ability to effectively govern.”
While alleged rape does not fall within the conventional job description of American presidents, justice department lawyers said that was irrelevant. It was not his official job description, but his “scope of employment” that mattered – in this case his interactions with the media while on duty.
Judge Lewis Kaplan will hear oral arguments over the justice department’s irregular intervention on Wednesday. His decision will have far-reaching implications.
Should he allow the department to become the defendant in Trump’s place, that would effectively end the case as federal government agencies cannot be sued for defamation. That in turn would put an end to Carroll’s petition to obtain a DNA sample from Trump so that she can compare it against material gathered from the dress she was wearing on the day of the alleged attack.
Carroll’s lawyers have protested that the justice department’s action distorts the law. “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,” they said in an earlier court filing.
Barr has previously demonstrated his willingness to inject his department into Trump’s personal and partisan affairs. In a range of highly controversial moves, he has backed Trump’s false claims about voter fraud in the election, attacked Democratic-run states, and used federal agents to eject peaceful protesters from public space outside the White House.
