General Discussion
In reply to the discussion: To everyone with their shorts in a bunch over DOJ's argument in the Trump in rape case [View all]StarfishSaver
(18,486 posts)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.