Biden DOJ will Defend Trump in Lawsuit - What Is the Alternative?

So I was unhappy when I heard the DOJ would defend Trump in the defamation lawsuit by Jean Carroll. Basically, she wrote that he raped her, and he responded by calling her a liar at a press conference, and worse. The lawsuit is about that defamation.

The Trump DOJ said that the President was doing his job, basically answering reporters’ questions, and the law says that the DOJ defends Federal employees sued for things they do while doing their job.

I was hoping the Biden DOJ would change course, but they didn’t.

So I thought about it a bit, and I think they should defend him. Here’s why.

The way the law is written now, even if you are doing something illegal, if it is part of your job, you are defended. Part of the President’s job is answering questions from the press.

I was thinking it would be better to exclude illegal behavior from qualifying for a DOJ defense.

But that means the DOJ has to determine guilt or innocence before they decide if they will defend someone. They don’t get to determine that. That is what the trial is for. If they decide someone is guilty and decline to defend, what if they are wrong?

I think the right answer is to assume innocence until proven guilty, and defend every employee.

What do you think?

I’m not clear on how “part of your job” also legitimately involves “doing something illegal”. What job descriptions include “crimes and/or misdemeanors”?

But this case isn’t about Trump committing a crime, it is about a civil tort. Not everything the President does is about being the President.

According to Vox this is pretty longstanding DOJ policy.

It’s still wrong. It’s a risk to the institution of the presidency when presidents use press time to defame their personal enemies, and it’s also a risk when after a president hijacks presidential duties to settle personal vendettas the DOJ defends and legitimizes this practice. The only thing the DOJ is protecting here is the power and unaccountability of the presidency.


Defamation lawsuits are not only about the principals in the case–they also serve to deter future behavior by others. In this case, it emboldens future demagogues from using the Presidential podium to spead knowing falsehoods and libels. I WANT future Presidents to think “Maybe I shouldn’t say that because I know it to be false and harmful.” If they mildly insult or tease people, I think future courts will judge the penalties accordingly, but if they knowlingly cause harm, I think they should be punished as severely as anyone else.

But as Velcro says, how do you know as soon as the lawsuit is filed that the Prez has done something illegal? What if he’s done everything by the book and the plaintiff is wrong? Is a mere allegation of illegal conduct made by the plaintiff enough to ean the DOJ won’t defend? The whole point of a lawsuit is that the legality of the Prez’s actions are disputed.

The lawsuit in question is, as I said, a civil case and not a criminal case.

Yes, it’s an allegation that the former president breached the civil law. The response from the former president is that he was acting in the course of his office and therefore it was not illegal. The point of a lawsuit is that the allegation is in dispute. If the former president is correct, he was acting lawfully in the exercise of his duties.

I don’t think it’s a question of acting lawfully or not. I think it’s a question of whether the suit against a government employee for things he does at work are actually suits against the government. The the DOJ “wins,” then the US Government is on the hook for Trump’s defamation. (although the case might have to be brought under the Tort Claims Act.) On the other hand, the government could settle and then go after Trump for contribution.

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.

Oh. You mean like every other American citizen?

I don’t have a problem with the DOJ deciding if they believe that a behavior was lawful or not. That’s part of their job. They’re not the President’s defense lawyer, nor are they a public defender. They’re the department of justice.

I also don’t see how it serves anyone to have both parties in a lawsuit both preferring the same outcome. The defendant is entitled to a strong, passionate defense. But if the DOJ thinks the case is meritless, they would be disincentivized to offer than defense.

The solution that occurs to me as a non-lawyer would be to simply have the defendant hire a legal team to defend himself. And, if he wins, then the government pays the legal bills. This would, in my opinion, be fair if since the defendant in question could easily pay for said legal team.

But that’s just spitballing. The main thing is that I don’t think it makes sense for the DOJ to have to defend a position they do not actually hold. I can’t see how that gets justice for anyone.

The standard for defense lawyers says they must provide the best defense possible even if they don’t like the crime or the client. That’s part of the job.

Part II Standard 4-2.1 c) Qualified defense counsel should be willing and ready to undertake the defense of a suspect or an accused regardless of public hostility or personal distaste for the offense or the client.

Are you saying public defenders should be able to decline to defend people who they think are guilty?

But what if it is a different defendant who couldn’t pay?
Are you saying the DOJ should do this for everyone, or just those who “look guilty” do the DOJ? That gets us back to whether they should be deciding that.

The DOJ does not agree.


As a matter of course, Department attorneys represent federal officials sued in their official capacities for declaratory, injunctive or other forms of relief.

True, but they can also decide they are in deep trouble and try to settle.

If the DOJ didn’t then trump would sue, and more issues.

I assume that the DOJ will give a technically correct defense with no heart in it, which may be better anyway.

The legal rationale and the motivation for the policy are two different things. I don’t think the DOJ have their hands bound and are required to act in either direction.

Given this (obviously if my assumption above is wrong then the rest is irrelevant), I think the motivation on the part of the DOJ to protect presidential power in all cases is extremely misguided. We’ve already seen during the Trump presidency that the president is so powerful and the mechanisms to prevent abuse are so flimsy that an openly corrupt person can just use it as a way of getting away with their corruption.

I think this ignores a ton of context.

There is discretion at nearly all levels of the justice system and it’s really tough to imagine an alternative to that in general. It’s just not possible to write laws that explain every situation. I think there is also a lot of impracticality with the idea discretion wouldn’t apply to lawyers representing the government - for one thing that is a completely unenforceable rule and for another it would just be a massive waste of time. Not to mention a ton of people who interact with the court system aren’t going to know the ins and outs or have the resources and might just be intimidated and give up in the face of procedures that are being mindlessly invoked.

I also think discretion is inevitable here. Even whether this law applies to the president is an opinion made by the DOJ. This is in the news now because a judge previously ruled that Trump was not shielded from personal liability, but the DOJ decided to appeal that. Looking at the Westfall Act, that one is a bit bizarre because it explicitly gives the DOJ discretion at the outset, which I guess you could use to imply that after that there is no discretion. But even then what does that mean - do they universally have to appeal as long as they get the chance?

The other thing is that big picture, when it comes to the most powerful people in our government we really have the opposite problem. The president is already a nearly unaccountable figure outside of elections every 4 years. Now obviously some little technical change in DOJ policy isn’t going to do much about this, and the changes that IMO are probably more important are in the way they slow-walk and stymie FOIA requests (not sure if that’s the DOJ or someone else) is a much better place to start, but using every means to shield the president in a system that already gives him way too much power is something I think is generally negative.

I would absolutely be in favor of this.

I did more research, and found out the following:

The DOJ is not trying to simply represent the former President. By claiming that the tort was done as part of his duties as a federal employee, they substitute the USA as the defendant. In most cases, including defamation, the USA cannot be sued, so there is no case to be tried. Game over.

So if the DOJ wins, Trump walks.

This is not acceptable.

I think the law needs to change so that individuals can be sued if they violate clear laws or federal policies in the course of their duties. If that puts a crimp in their ability to do their job, that is not too big a price to pay.