A lawsuit against Donald Trump by magazine columnist E. Jean Carroll is dragging on as President Joe Biden's Department of Justice follows in the footsteps of the prior administration by seeking to substitute for Trump as the defendant in the case.
Carroll alleged that Trump raped her in a dressing room at the Bergdorf Goodman department store in the 1990s, which he has denied. She sued him in November 2019 for defamation after he called her a liar, denied meeting her and alleged she made up the claim to sell her new book at the time.
In a brief filed Monday, the current DOJ asked the 2nd U.S. Circuit Court of Appeals in Manhattan to overturn a district court judge who ruled that Trump’s statements about Carroll and her rape claim were not made as part of his official duties.
That October ruling said Trump couldn’t use a law protecting federal employees from certain lawsuits because his comments were made outside of his official work.
The DOJ said it did not endorse Trump’s statements about Carroll, calling them “crude” and “disrespectful,” but argued that Trump acted “within the scope of his office” in denying the allegation.
“Elected public officials can -- and often must -- address allegations regarding personal wrongdoing that inspire doubt about their suitability for office,” the filing stated.
The DOJ argued Monday that the Federal Tort Claims Act, a law that shields federal employees from individual damages claims, and the Westfall Act, which allows employees to be removed from lawsuits as defendants and replaced by the U.S. government, apply to Trump in this case.
"Conduct that falls within the scope of employment for purposes of the Westfall Act thus need not be authorized or acceptable," acting Assistant Attorney General Brian Boynton wrote in a new court filing. "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."
Mike Stern, who served as senior counsel to the House of Representatives from 1996 to 2004 and dealt with the Westfall Act involving members of Congress, said it’s likely the DOJ will win its argument.
“My inclination is to think that the DOJ will probably win on that. If they did not, it opens up a whole bunch of potential lawsuits against the president, the vice president and other high cabinet officials ... There’s a can of worms they’re opening up,” Stern told ABC News about what could happen with future administrations. “It has nothing to do with Trump and wanting to protect him.”
The case would be dismissed if the DOJ were to replace Trump, because defamation is an intentional tort that isn't covered by the Westfall Act, Stern said.
The Monday filing appears to demonstrate that the DOJ under the Biden administration intends to continue the same stance as it did under Trump -- despite Biden's harsh criticism of his predecessor. At one presidential debate, Biden accused Trump of treating the DOJ like his "own law firm" in the Carroll case.
Carroll’s lawyer lead Roberta Kaplan slammed the move as “legally and morally wrong.”
“It is horrific that Donald Trump raped E. Jean Carroll in a New York City department store many years ago. But 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,” Kaplan told ABC News.
“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. Calling a woman you sexually assaulted a ‘liar,’ a ‘slut’ or ‘not my type,’ as Donald Trump did here, is not the official act of an American president. We remain confident that Judge Kaplan’s decision will be affirmed by the Second Circuit," she added.
ABC News has reached out to the White House for comment.
Carroll’s lawyers have previously argued that allowing the Justice Department to insert itself into the defamation case would effectively make presidents above the law.
Carroll made her allegation against Trump in an article published by New York Magazine in June 2019. The article was an excerpt from her then-upcoming book.
In response to the allegation, Trump said at the time, “No. 1, she’s not my type. No. 2, it never happened,” during an interview at the White House with The Hill.
In another statement at the time, Trump said he never met her, adding, "She is trying to sell a new book -- that should indicate her motivation. It should be sold in the fiction section. Shame on those who make up false stories of assault to try to get publicity for themselves, or sell a book, or carry out a political agenda."
In her lawsuit, Carroll argued Trump damaged her reputation and career -- she said she lost her job at Elle magazine -- by denying her story and claiming she took money from political opponents to fabricate it.