Is Biden’s Justice Department Actually Going to Defend Trump Against Capitol Riot Suits?

Earlier this month, this website wondered aloud, “Why the hell is Joe Biden’s Justice Department defending Donald Trump?” The question arose from a bizarre, troubling pattern of late in which the DOJ, currently lead by Attorney General Merrick Garland, has gone to bat for the ex-president. In May, for example, the department filed a motion seeking to appeal a federal judge’s ruling that the agency had to release the memo that Bill Barr used to help clear Trump of obstruction in the Russia probe. Weeks later, Garland’s attorneys continued a push started by Barr to defend Trump in a defamation lawsuit brought by author E. Jean Carroll, with Barr’s DOJ arguing that Trump was acting in his capacity as POTUS when he responded to her rape allegations by saying: “Number one, she’s not my type. Number two, it never happened,“ and then also: “[She’s] totally lying. I don’t know anything about her. I know nothing about this woman. I know nothing about her. She is—it’s just a terrible thing that people can make statements like that.” Obviously this was disturbing for a number of reasons, not the least of which being that (1) a federal judge already ruled last October that Trump was not, in fact, acting “within the scope of his employment” when he went after Carroll, leaving the DOJ under no obligation whatsoever to defend the guy (2) he is now a private citizen who claims to be very rich and can afford his own lawyers and (3) as Carroll’s attorney put it, such a position by the government “would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward.” Also, the department may have painted itself into a corner wherein it might have to defend Trump against lawsuits accusing him of inciting the January 6 attack on the Capitol.

According to a number of constitutional scholars and lawyers who spoke to Reuters, the DOJ’s decision to claim in the Carroll case that presidents enjoy basically boundless immunity for their comments in office will likely have “profound implications” for a number of ongoing suits, including ones concerning the insurrection Trump caused.

Attorney Philip Andonian said he fears the Justice Department, under the same legal rationale, will also defend Trump in a case Andonian is pursuing on behalf of U.S. Representative Eric Swalwell, a California Democrat. Swalwell alleges Trump incited the deadly Jan. 6 riot in an effort to stop Congress from performing its duty to certify Biden as the election winner. Andonian called the logic behind the department’s decision to defend Trump against Carroll’s defamation suit “alarming.” The Justice Department appears to put no limits on immunity for speech by a sitting president on any matter considered “of public concern,” Andonian said.

One prominent constitutional scholar characterized the department’s position in the Carroll case as a blunder that will be difficult to undo. “It would be very difficult for the Justice Department to change course now,” said Laurence Tribe, a Harvard University constitutional law professor and a frequent critic of Trump. “The Titanic is aimed at the iceberg.” Tribe and other critics of the department’s position say it fails to draw obvious distinctions between a president’s official conduct and matters that clearly fall outside the duties of the office. When a president says or does something illegal, they say, it does not warrant a taxpayer-financed defense by government lawyers.

Garland defended the position the DOJ took in the Carroll case, saying, “Sometimes…we have to make a decision about the law that we never would have made and that we strongly disagree with as a matter of policy.” Andonian, Swalwell’s lawyer, told Reuters he believes the Justice Department will adopt the same argument it used against Carroll to claim that Trump was speaking on “matters of public concern” during his January 6 speech that preceded the attack on the Capitol. As a reminder, during that speech, Trump told the crowd, among other things:

• “All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they’re doing. And stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up, we will never concede. It doesn’t happen. You don’t concede when there’s theft involved.”
• “Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide. This was not a close election.”
• “Republicans are, Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we’re going to have to fight much harder.”
• “Mike Pence is going to have to come through for us, and if he doesn’t, that will be a, a sad day for our country because you’re sworn to uphold our Constitution.”
• “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”

The Justice Department declined Reuters’s request for comment on whether it would, indeed, use the Carroll argument to intervene in other lawsuits against Trump. And hopefully, it won’t! Attorney Joseph Sellers, who is representing U.S. Representative Bennie Thompson in his suit against the ex-president, told reporters Peter Eisler and Joseph Tanfani, “I don’t think anyone would think it’s within the scope of the president’s legitimate duties to encourage people to interfere with the functioning of another branch of government. He was promoting an insurrection and a riot.”

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