To everyone with their shorts in a bunch over DOJ's argument in the Trump in rape case

[StarfishSaver]

Take a breath.

This is SOP - the Department needs to protect its institutional prerogatives because future presidents won't be criminals like Trump. Their position actually has nothing to do with Trump or his guilt or innocence at all. This is about being able to defend presidents and other government officials who aren't criminal rapists from lawsuits in the future.

Also, this isn't a good development for Trump. If you were in Trump's shoes right now, would you want your defense to be in the hands of the Biden/Garland Justice Department? I sure wouldn't.

I wouldn't be surprised if he settles it soon just to make it and them go away - which may also be part of DOJ's strategy.

[Scottie Mom]

1. Good points.

KnR. 👍

[dem4decades]

2. Yeah, my shorts are in a bunch, this is the third time on three weeks DOJ

Has taken a Trump position. That's bullshit, and Biden said it was bullshit during the debates. What's changed?

And are you seriously suggesting that the DOJ lawyers will do a bad job defending Trump's case? Isn't that against their oath?

[StarfishSaver]

5. Of course they won't do a bad job. That's the point.

DOJ lawyers won't pull the kind of crap Trump's private lawyers would - and there's definitely no way Trump can bully/bribe them into making fools of themselves and turning the case into a circus the way he would if he were using private counsel.

I suspect the last thing Trump wants is to be dependent on ethical, competent lawyers in a case like this. As I said, I wouldn't be surprised if he settles it soon just to make it and them go away - which may also be part of DOJ's strategy.

[BeyondGeography]

3. Unbunch your shorts, there are institutional issues at stake here!

That’s a sure fire turnout winner right there, yessiree!

First we fail to defend the vote, then we give people reasons to stay home. But at least we aren’t creating potentially difficult precedents for the political class down the road. Yay!

[cilla4progress]

25. Sorry, but,

gotta agree wit' ya!

[Ocelot II]

4. Once again, you ride to the rescue and bring us sanity. Thank you.

I was about to write something raising those points but I was too irritated at all the hand-wringing; I'd have just been snarky. Yes. It's just like the other ongoing cases that this DoJ is continuing to handle because it's obligated to defend existing law and policies, whether they actually like them or not. If they don't, the whole thing could be turned around in a bad way under another administration.

I am always reminded of the scene from A Man For All Seasons, where Thomas More (apocryphally) explains why he'd give even the Devil the benefit of the law.

[StarfishSaver]

7. Great clip!

Thanks for posting it! It's very appropriate for these times.

[The Magistrate]

8. More Burnt To Many Protestants, Ma'am

He gets no credit for opposing Henry.

I rather doubt when actually in power, as opposed to being a character in a modern play, he gave much of anybody he opposed benefit of law.

[Ocelot II]

10. I did say it was apocryphal. It was an excellent play/movie

that I am quite aware probably did not accurately represent many aspects of More's life. But the remarks as cited are important and true.

[The Magistrate]

16. True, Ma'am, It Is a Good Line

And a sentiment worth holding to as a general rule.

But the wretch does get benefit of law by arguing for himself in court that he did not slander this woman. He is deprived of nothing he has the slightest right to by having to do this himself, without aid from the government.

I confess I do see red when More is mentioned. The same sort of reflex overtakes me when Woodrow Wilson's name comes up in a complimentary manner....

[StarfishSaver]

15. I'm not praising More. But I agree with the sentiment expressed in this filmclip

[The Magistrate]

6. It's A Mistake, My Friend

And a bad one.

There is no institutional prerogative that requires the Government of the United States to stand for a President in a civil matter involving slander of a citizen with a grievance.

A President in such a situation ought to be able to secure counsel, and high-powered counsel to boot, so it is hardly the case justice requires the government to become the defendant in such a suit.

[StarfishSaver]

9. I don't often disagree with you, but I do here

It is the wise and appropriate move.

There may not be a specific provision of law for this exact type of case, but neither is there a specific exception in the law requiring DOJ not to defend a president under these circumstances. And it would be a dangerous precedent for DOJ to try to carve out an exception at this point.

I have no doubt that Merrick Garland, Lisa Monaco and Vanita Gupta carefully considered the law, precedents, and every potential outcome and ramification before settling on this course is action. They know what they're doing. They certainly know more and better than any of us do.

[The Magistrate]

12. Nor I With You

But I repeat, this a bad mistake.

It was outrageous that the attempt was made to substitute the government for Trump in this matter in the first place.

Norms are not restored by pretending they have not been breached, and attempting to carry on as if nothing had happened.

Norms are restored by quashing the acts which broke them, and condign punishment for those who violated them.

[MerryHolidays]

18. I'm gonna have to agree with The Magistrate on this one

Last edited Tue Jun 8, 2021, 01:06 AM - Edit history (1)

I get the point about defending institutions like the DoJ and the Presidency. The point is, however, this case NEVER should have been defended by the United States. trump could have hired his own lawyer.

I don't recall the DoJ defending President Clinton re: Paula Jones and Monica Lewinsky. He hired private counsel and spent a fortune in doing it. It nearly bankrupted the President and Mrs. Clinton.

Even SCOTUS steps up to the plate when it makes a mistake in granting certiorari to hear a case and then changes its mind. If I recall, this is when SCOTUS "DIGs" a case, or "Dismissed as Improvidently Granted." In other words, the SCOTUS clearly indicates it was "improvident" to exercise its discretionary power under the Writ of Certiorari to hear a case.

There is no reason for the DoJ to keep on defending this ridiculous case. And it is ridiculous because the United States should have NO involvement in a case where the underlying facts that go to the truth or falsity of statements that trump made didn't even occur while he was President. Let trump deal with it.

[Pachamama]

50. +1000000

Agree completely

[FoxNewsSucks]

11. Good point,

why must taxpayers defend a "billionaire" for something not done as part of the job.

I don't recall taxpayers funding the defense of Bill Clinton for that consensual BJ investigation.

[dalton99a]

26. +1. Try and explain it to the average Democratic voter

[Ocelot II]

13. But they are not defending the substance of Trump's defense; merely the principle

that some acts of a president can be attributable to, and therefore defended by, the government. I don't agree with the position originally raised by the previous DoJ (which, institutionally, is still the same DoJ; meaning the client was never Trump anyhow), but the argument being raised on appeal is where the line should be drawn between what is and what is not a governmental act when committed by a president. I believe the DoJ will lose the appeal. But I don't think they are doing anything nefarious or inappropriate by proceeding with an existing case.

[StarfishSaver]

17. Unfortunately, this is a fine but critical legal point that most laypeople don't understand

And it's an important and appropriate action for DOJ to take, notwithstanding the criticisms coming from various quarters.

[The Magistrate]

21. Engaging In Slander, Ma'am, Is Not Such An Act

The justification boils down to claiming anything done by a person holding that office is part of his official duties, and that is nonsense.

I do not think they are doing anything nefarious, but they are engaged in pettifoggery of high degree by pretending there is the least merit to the Trump attempt to weasel out of this suit.

Appealing the judge's ruling in the matter of Barr's memo is about as far as I am able to go with the 'institutional prerogatives' line. I disagree with that as well, mind --- the memo should be released, it ought not take a judges order to expose the malfeasance committed. But I understand the argument, and have some sympathy for it.

[StarfishSaver]

22. However, he has not been found to have engaged in slander

The issue is whether DOJ should be able to defend a president in a lawsuit brought based on something he did while in office. They're not arguing that he's immune from suit. The only issue is who represents him in court.

If Giuliani filed suit against Joe Biden tomorrow alleging that something he said in press conference last March slandered him, DOJ would probably want the option to defend him. And I doubt too many DUers would be demanding that they stay out of it and that Biden should hire private lawyers to represent him.

[The Magistrate]

23. And It Should Not Do So, Ma'am

In a civil matter relating to allegations a President has defamed a citizen pressing a grievance against him. It is a purely private matter, without the slightest bearing on official duties.

I would certainly expect President Biden to engage private counsel in such a matter, and he could do so with perfect confidence such a suit would be thrown out on summary judgement. I would oppose a claim it was a matter for the Justice department. The head of state is not a monarch here, is not 'the law speaking', and does not speak as the government whenever he or she speaks concerning matters not part of the Executive's remit. Which replies to reporters are not. Any more than is disparaging and insulting a citizen who makes a credible allegation of rape committed before the man held any office.

[StarfishSaver]

24. You're not going to change my mind and I'm not going to change yours

So I'll just thank you for an interesting back and forth and bid you a pleasant good night.

[The Magistrate]

28. And The Same To You, My Friend

Be well, and stay safe.

[cilla4progress]

27. I see it the same,

Magistrate!

We are dealing with fascistic evil here.

Though I know that's not the foundation of your argument.

[Sur Zobra]

31. You are absolutely correct!

(But sycophants are gonna sycophant )

[RockRaven]

14. The DOJ should persist in an unusually corrupt action because of a superficial similarity to

real, non-corrupt prerogatives? No, they really should not.

There is no precedent set by withdrawing from a conflict which was illegitimate to be involved in from the first.

[StarfishSaver]

19. Attorney General Garland, Lisa Monaco and Vanita Gupta have a far better understanding

of what prerogatives they can and should protect than the non-lawyers on DU, notwithstanding the assumption by many here that they know better.

[MerryHolidays]

20. Not everyone here is a "non lawyer"

Not that being a lawyer gives me any special insight. But this one falls flat on its face, either as a lawyer or a layperson. Please see my earlier post.

[cilla4progress]

29. I wish things wouldn't get

personal.

[RockRaven]

30. Considering that your OP contains errors of fact and law that a non-non-lawyer would not make,

you probably should not throw shade at non-lawyers.

That last sentence of your OP is in the realm of what Pauli called "not even wrong."

Under the current DOJ argument, there is no personal liability for Trump and so nothing for Trump to need to settle.

[StarfishSaver]

35. Trump is still the defendant in this case and is therefore still subject to personal liability,

notwithstanding DOJ's argument. So there is indeed reason for him to want to settle if he thinks the case would be handled by DOJ rather than by his lawyers representing him as the defendant.

And if DOJ succeeds in its argument (I don't think it will, but they needed to make it anyway), and the government is substituted as the defendant, he will have even more reason to want to get rid of the case since there's a good chance this DOJ would not waive sovereign immunity, as Barr's DOJ surely would have, and a lot of damaging information could come out - not to mention he would be subjected to discovery, depositions and testifying at trial, if it gets that far.


My OP is completely accurate as to the law and the facts.

[MerryHolidays]

40. Please discuss why SCOTUS can DIG a certiorari petition

But, according to your ironclad rules, the DoJ cannot. The DoJ, on many issues, has jettisoned unworkable positions. And so can SCOTUS.

I struggle in vain to understand exactly what you are trying to defend here.

[RockRaven]

58. Here is a thread with an article which clearly states the DOJ argument is otherwise.

https://www.democraticunderground.com/10142753701

[StarfishSaver]

59. This article doesn't contradict anything I wrote

As of now, Trump IS the defendant and HE is the one subject to personal liability.

DOJ is arguing that the federal government should replace Trump as the defendant. But that has not yet happened.

As I said, Trump is the defendant and unless and until a court finds that the Westfall Act applies to him and substitutes the federal government for him as the defendant, he remains the sole defendant and he and only he is exposed to personal liability in this suit.

[tosh]

32. Thank you!

I need reassurance these days.

🙏

[sprinkleeninow]

33. It's uncomfortable trying to walk around with a wedgie. eom

[W_HAMILTON]

34. Did the DoJ defend Clinton against his accusers?

I don't remember that to be the case.

[StarfishSaver]

36. No. The lawsuits against him were based on alleged behavior before he became president

[MerryHolidays]

38. The truth or falsity of the facts related to the underlying facts happened before 1/20/2017

That's the real issue here: all of the facts that go to the heart of the truth of what happened occurred before trump became President.

Rape/sexual assault has NOTHING to do with being President.

[StarfishSaver]

41. You're confusing evidence with the cause of action

[MerryHolidays]

44. I have no idea what you mean by that

It's pejorative and ad hominem, so that much we can agree on.

You seem to insist that the DoJ cannot ever deviate from what a previous administration with another AG wanted. Is that your rationale and the rule of law that you want? So, if a DoJ under one President brought a malicious case, you believe that the sanctity of the institution trumps (pun intended) the rule of law? That's interesting.

There are PLENTY of examples where the DoJ has dropped matters, and that the SCOTUS has DIGed its own decisions. Could you please elaborate on those and why your evidence vs cause of action comment is relevant in light of those?

[StarfishSaver]

45. I am not arguing that DOJ can't deviate from a previous administration

I'm trying to explain that DOJ has obviously determined that it's important to protect the principle of the application of the Westfall Act to presidents and other government employees and if they don't, their failure to do so can hamper their ability to use it in the future.

They likely know that the court probably won't accept the argument in this case, so there's a good chance they won't have to take over the case. But they will have preserved their ability to do it in other cases that aren't so obnoxious - such as if Biden or Harris get sued, as they no doubt will in the next few years.

Not sure why you thought my comment was an ad hominem. You are indeed confusing a cause of action with evidence. The cause of action in this case is defamation, not assault. The facts of the assault will be evidence proving whether he defamed Carroll, but the assault is not the cause of action.

[MerryHolidays]

49. Using the word "confusing" is ad hominem, under any circumstances

I am fully aware of the gravamen of Ms. Carroll's suit, which is defamation. And the truth or falsity of rape/sexual assault is directly relevant to the cause of action. Much in the same way that the tort of slander depends, to a very large degree, on the truth or falsity of the facts giving rise to the putatively defamatory statement.

While I am happy to better understand the Westfall Act, something I confess that I don't know about, the cause of action vs. evidence point you make is not relevant. The Westfall Act, as I understand it, has to do with the duties performed by a federal employee. I fail to see how rape/sexual assault, or statements made in defense thereof, is, in any possible way, related to a President's official functions. I think that's the real point.

So, to that extent, "confusion", without getting to this point, is ad hominem.

Anyway, as I said, I only learned about the Westfall Act just now. I appreciate your stating that and giving all of us, lawyers and non-lawyers, as you put it, this point you were trying to make.

Goodnight!

[StarfishSaver]

51. She's not suing him for sexual assault

She's accusing him if defamation based on statements he made as president. Whether his comments were truthful or defamatory is based largely on whether or not the assault actually did take place. But the assault itself is cause of action.

Defamation is not related to the duties of a president, but making statements about a wide variety of things is. Accusing a president of making statements that are defamatory could be so close to implicating official behavior that the Westfall Act could apply.

The key is that, unless and until the evidence is put forth and certain rulings are made, it is not legally determined that statements are defamatory and unrelated to the performance in office. Of course, we know that Trump's comments - like most everything that comes out of his mouth - were defamatory. But our opinions are not legal determinations. Whether his comments were true or false would be determined in court.

One of Trump's cronies could sue Biden tomorrow alleging he defamed them in a comment he made as president. If the comments were actually defamatory, they probably wouldn't fall within Westfall. If they weren't defamatory, he'd be protected. But that wouldn't be determined until further into the lawsuit.

I think the DOJ doesn't want to set a precedent for having any and every defamation suit against a president determined on its face to be outside of the scope of a Westfall defense. If they didn't make this argument in this case, that could happen and they'd be boxed in in the future.

[MerryHolidays]

52. Nope. They can clearly make a distinction

You confuse me by saying the "assault itself is cause of action." As a practical matter, I agree, but you have been insisting that the cause of action is defamation, not sexual assault. Can you please clarify?

This is straight out of a law school exam: are putatively slanderous statements regarding rape/sexual assault protected merely because one is a federal employee? Is this the rule of law you advocate for all federal employees including, but not limited to the POTUS? Is there any other comparable precedent that you can cite where this is the case?

You know, as well as I do, that an answer on an exam that "it depends" under these circumstances would probably warrant failure. The statements in question go directly to rape/sexual assault and have nothing to do with being a federal employee/President.

[W_HAMILTON]

42. So is the lawsuit from E. Jean Carroll.

So, why the discrepancy?

E. Jean Carroll claims that Trump sexually assaulted her in the mid-1990s.

[StarfishSaver]

43. That's not the basis of the lawsuit

She's not suing him for sexual assault. She can't because the statute of limitations ran.

She's suing him for defamation based on statements he made while president.

It's a fine distinction, but a critical legal one.

[MerryHolidays]

46. So your "fine distinction" covers things that had nothing to do with being President?

Are you advocating this as the rule of law to emanate from this travesty of a case?

I again fail to see what is the "fine distinction" you seem to make about underlying events that go to the heart of defamation when a President was not even President. Rape and sexual assault, which are CLEARLY the underlying facts at issue in this defamation case, have NOTHING to do with any official function that I know of.

Even if a charge were frivolously made, a President hires his/her own lawyer and can seek Rule 11 sanctions and costs.

Please tell me the name of the DoJ lawyers who defended Bill Clinton in the Lewinsky and Jones actions? That's the closest parallel to this, especially the Jones matter, the facts of which occurred before President Clinton took that office.

[StarfishSaver]

47. Clinton was not sued for anything he did while president, so the Westfall Act did not apply.

[MerryHolidays]

48. Ok, fair enough.

I am not familiar with the Westfall Act, so I will cease banging on regarding this until I understand it more.

Thanks for making this point, and hopefully, all of us, lawyers or otherwise, can understand the OP based on this particular point.

I sure intend to! Good night, and I appreciate the good debate.

[speaknow]

37. Nah, Garland wants the court to

throw it back to civil court where it
should be. If a Judge rules for it to
go back to civil and the Garland group
appeals that, then there's a problem,
what do we have, well you don't clean
up the mess by protecting it.

[Snackshack]

39. Protect the Office.

No matter what.

[uponit7771]

55. Who's to decide if Putin's Whore's slander "was acting within the scope of [their] office"?

I can understand the DOJ being involved here but once that is decided they should step away

[StarfishSaver]

57. The court will decide.

[waddirum]

56. " future presidents won't be criminals like Trump"

That is not necessarily true.

[MerryHolidays]

60. This from the House Judiciary Committee kinda' says it all

https://www.democraticunderground.com/100215508987#post2