Apologies for my sloppiness on illegality vs. tort (tort being “something you can be sued for”). Please substitute accordingly.
This is not about the DOJ protecting the power or unaccountability of President, or endorsing his behavior. This is like a public defender assigned to defend a clearly guilty defendant. Her job is to make the best possible case for her client. She is not endorsing or excusing anything.
Having the DOJ defend a President does not mean he will not be punished as severely as anyone else. If he is judged on the merits and found to be liable (highly likely with or without DOJ help) future presidents will be deterred. Speaking as President is no shield to the accusation of defamation. It just means his employer provides the lawyers.
Not exactly. Acting in the course of his office can be illegal or tortious (I learned a new word today!) Talking to reporters is part of his duties (the “what”). If he defames someone in the process (the “how”), it is still part of his duties.
Here’s an excerpt from the DOJ brief, emphasis mine, cites removed:
The second question presented is whether a high-ranking elected official
subject to close public scrutiny acts within the scope of employment when making
public statements denying and responding to serious accusations. The FTCA and
Westfall Act, and the common law tort principles that they incorporate, recognize that
in some instances employees will commit torts—including intentional torts—for which the employer bears responsibility, even when the employer disapproves of or expressly forbids the tortious conduct. Conduct that falls within the scope of
employment for purposes of the Westfall Act thus need not be authorized or
acceptable. Indeed, the premise of a scope-of-employment analysis is that a tort may
have been committed. Under the Westfall Act, even conduct involving “serious criminality” or which runs “contrary to the national security of the United States”may fall within the scope of employment.
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.
So back to the original question - should we change the law so the DOJ gets to decide not to defend a federal employee if they think their specific behavior involves “serious criminality” or runs “contrary to the national security of the United States”?
That would mean the DOJ decides all these issues, not the judicial system. (At least in regards to whether the DOJ defends them)
I find that to be a problem. It’s like the courts can decide not to provide a public defender if they think the person is guilty before the trial starts.
If a future President were put in the same situation, would you be OK making him or her pay for their own lawyers based on the DOJ opinion of their liability? Even if the DOJ reimburses them for their legal costs, maybe they could only afford a crappy lawyer, so they lose.
It’s just not as clear-cut as I originally thought.