Add to the List
It was just another ugly story of American politics. Last year, E. Jean Carroll, a newspaper columnist and book author, accused Donald J. Trump of sexually assaulting her in a department store dressing room in 1996. She took her place in line with the other twenty-five women who have accused him of sexual misconduct (Business Insider).
The statute of limitations for sexual assault in the state of New York is twenty years. That’s put’s criminal charges off the table, and Carroll knew that when she revealed the incident in 2019 as part of her book on women in America. As the New York Times noted at the time:
“She also thought of the women she had advised over the years to buck up, to speak up, to go to the police or “move everything out when he’s at work”. “I felt like a fraud,” she said, because she had taken no such action herself. By the time she submitted her book proposal, in May 2018, she’d rethought it as part memoir, with the Trump allegation included.”
President Trump responded to her accusation in typical fashion.
I’ll say it with great respect: No. 1, she’s not my type. No. 2, it never happened. It never happened, OK?” Trump told the news outlet. When asked if he thought Carroll was lying, the president said she “totally” was. “I don’t know anything about her. I know nothing about this woman…She is—it’s just a terrible thing that people can make statements like that” (Daily Beast).
Defamation
With criminal charges unavailable, Ms. Carroll sued Mr. Trump for defamation of character because he called her a liar. She showed real damage caused by the accusation, as she was fired from her job at Elle Magazine soon after. She said when the case was filed November of 2019:
“I am filing this on behalf of every woman who has ever been harassed, assaulted, silenced, or spoken up only to be shamed, fired, ridiculed and belittled,” Carroll said in a statement. “No person in this country should be above the law — including the president”(WAPO).
The lawsuit was brought in New York State Courts.
Mr. Trump used his position as President to try to avoid the case. He claimed, as he has in the ongoing Manhattan District Attorney’s investigation, that he is immune from prosecution or civil suit while he remains President. However, the United States Supreme Court recently reaffirmed their decision in Clinton v Jones that the President can still be sued in civil court and investigated while in office.
Federal Case
So Mr. Trump might have to answer in New York Court for calling Ms. Carroll a liar. But there’s a new twist in the case. The United States Department of Justice filed to move the case to Federal Court, and to replace defendant Donald Trump with the United States of America. You read that right, instead of a state case of Carroll v Trump, if the Justice Department is successful, the case will become a federal case of Carroll v United States.
The basis of the Justice argument is that the President was “acting in his official capacity” when he called her a liar. That makes the lawsuit against the President and the United States, rather than the individual Donald Trump. If the Justice filing is successful it will make Carroll’s task near impossible, as the Federal Government is generally immune from defamation cases.
And since the Department of Justice defends the United States in Court, the American taxpayer will foot the bill for the Defense, and even pay the fine if they lose. Not only would Donald Trump be “off the hook” legally, he’d be in the clear financially.
The Arguments
The “cold hand” of Attorney General Bill Barr is evident in the Justice Department move, acting again in his “unofficial capacity” as the President’s lawyer and defender. The Federal reasoning is based on three issues. First, since Donald Trump was in fact President when he called her a liar, it is an “act” of the United States. On that basis, then when Clinton got together with Monica Lewinsky, the whole United States got…well, you get the drift.
The second “pillar”, and perhaps more realistic, is that but for being the President of the United States, Donald Trump wouldn’t be facing this lawsuit. But Trump was sued many times before he ran for President. In fact, Trump and his business has been sued more than 3,500 times. Lawsuits are nothing new to the Trump’s, whether he’s the President or not.
And the third is another variation on the Constitutional question of whether a state lawsuit puts an “undue burden” on the President, preventing him from doing his job. While this issue has been addressed by the Supreme Court now three times (Nixon v United States, Clinton v Jones, Trump v Vance), this variation is just different enough that the Justice Department will try, try again.
The Fixer
And there is a fourth, and perhaps most important result of the Justice filing. With the entry of the Federal government in the case, all of these issues must be resolved in the Federal Court of the Southern District of New York before the case can proceed in the New York State Courts. And of course, whatever SDNY decides can be appealed.
So what Bill Barr provides his “client” the President is time. Time to get past the election, and putting the burden of time and money on his accuser.
It’s just another “fix” from the ultimate “fixer”, our Attorney General of the United States, Bill Barr.