To those ranting about AG Garland's decision to oppose a lawsuit against President Trump...

[brooklynite]

Would you support the right of Tara Reade to file a lawsuit today against President Biden?

Doesn't matter that she hasn't.

Doesn't matter that her claim was an event in 1993.

Doesn't matter that President Biden didn't defame her like Trump did.

Doesn't matter that she'd need to state her accusation in Court.

The issue that AG Garland is responding to is broader: can a sitting President be sued while in office? The answer, upheld UNANIMOUSLY by the Supreme Court (in JONES v CLINTON) is "no".

If the answer was "yes", imagine how many lawsuits would be filed against President Biden for, say, election fraud? This would be a huge distraction for him, his staff and the Dept of Justice.

AG Garland is doing the right thing.

[Rebl2]

1. I think

you are correct.

[mcar]

2. This!

He's also been in office for what, 2 months? The idea that he'd be able wade through the heaping pile of sh!te left by the previous administration by now is ludicrous.

[RainCaster]

3. DFT is not in office anymore

I don't see the correlation.

[JohnSJ]

5. It is a defamation suit she made against trump when he was president

Last edited Tue Jun 8, 2021, 10:52 PM - Edit history (1)

[SayItLoud]

25. She's made it against him. NT.

[JohnSJ]

41. I didn't word it right. Thanks, edited

Last edited Tue Jun 8, 2021, 10:51 PM - Edit history (2)

[brooklynite]

6. DFT is also subject to lawsuits now...

The case in question was a lawsuit when DFT was President. The AG has to uphold the principle.

[krkaufman]

55. Sure, up to a point.

He’s not being sued in his role as President, so the DOJ could easily step away from any defense participation now that Trump has even more leisure time than before to mount his own defense.

If Trump were being sued or prosecuted for some official act, then the situation would be different ... but this sounds like the same overreach exemplified by the infamous memo saying a sitting President can’t be indicted.

[orangecrush]

27. Exactly.

[JohnSJ]

4. The problem is most in the media have done a terrible job of reporting what this is about

It isn’t about the rape charge, it is a defamation suit trump made against Ms Carroll while he was a sitting president

[Bev54]

7. I am confused by your Supreme Court decision

The decision was that YES he could be sued in a civil case that happened prior to his sitting in office. The difference in this case is that Trump's comments were while he was a sitting president even though the incident he lied about happened prior. This is a civil case and I do hope they find his comments were not in concert with his duties.

[Bev54]

8. Here is a statement of the wikipedia

Jones, 520 U.S. 681 (1997), was a landmark United States Supreme Court case establishing that a sitting President of the United States has no immunity from civil law litigation, in federal court, against him or her, for acts done before taking office and unrelated to the office.

[Goodheart]

10. Carroll's defamation suit against trump is for statements he made while in office.

BUT, I don't see why we should pay for his defense now that he's not.

[NYC Liberal]

15. It's not "Trump's" defense, it's a defense of the executive branch and the presidency.

Unfortunately, Trump, having gotten himself installed as president, has legal protections that apply to all presidents (or all federal officials in this case).

[StarfishSaver]

18. This.

[Bev54]

21. No he has no immunity to civil lawsuits as president

unless they are in the course of his duties, that is the only question here.

[Bettie]

51. That only works for Democratic presidents

they have no immunity, but Republicans? Oh, they have ALL the immunity forever!

[StarfishSaver]

54. No

This has been explained several times in this thread.

[Goodheart]

9. Your analogy fails because trump is not in office.

Aside from that, I doubt that the DOJ is tasked with defending EVERYTHING that comes out a President's mouth. If Ms. Reade's suit has a plausible chance of success, given the facts, then YES, I'd support her right to file suit. We didn't elect a king.

[brooklynite]

20. The analogy hold because the lawsuit was filed when Trump was President.

[Fiendish Thingy]

11. The question isn't can a sitting president be sued while in office

The question, or rather, the answer/argument, provided by Bill Barr, is that a president cannot be sued at anytime for defamation for comments he makes while in office, and the DOJ is bound to defend the office of the presidency.

We shall see what the court says.

[The Magistrate]

13. The Name 'Clinton' Comes To Mind, Sir

It is already the rule that she could sue.

If you want to make an analogy, you would have to postulate that Mr. Biden, while President, said she was too ugly and not his type.

The idea that what Trump said was part of his duties as President is flat nonesense, as the Circuit judge correctly ruled.

This is an extremely stupid thing for Mr. Garland to do, or to tolerate if it emerged from the department he heads out of she inertia.

[StarfishSaver]

17. This may not make a difference to your aasessment

but today, Joyce Vance, who was very critical last night, scaled back her criticism today and said this was an understandable and reasonable decision by DOJ, but she still thinks it's the wrong decision.

[orangecrush]

28. THANK YOU SIR

[Liberal In Texas]

34. Exactly right. n/t

[Fullduplexxx]

14. Presidents cant be investigated while presidenting

[StarfishSaver]

16. The issue isn't whether a sitting president can be sued while in office

The Supreme Court ruled unanimously in the Jones case that a president can indeed be sued while in office.

But that's not the issue here.

The issue is whether the statements Trump made that Carroll alleges defamed her were made as part of his official duties as a government official. If they were, DOJ is authorized to substitute the government as the defendant since government employees are not personally liable for official actions - it the government can be sued.

[cilla4progress]

44. You believe he made the statements

in the course of his official duties?

[StarfishSaver]

45. No, I don't believe that

But it doesn't matter what I believe.

[cilla4progress]

46. I misunderstood, then.

I thought you supported DOJ's move.

[StarfishSaver]

53. I think DOJ's move is a reasonable one

I understand why they did it and believe it's a correct course of action. They're arguing a point of law that is important to protect - and I'm pretty sure they are confident that the court will reject it in this particular case, but they will have preserved their ability to take that position in future cases involving less odious facts.

If they didn't do this and in the near future, some nutcase sues Kamala Harris claiming that something she said in a press conference or meeting or in a speech defamed them and DOJ tried to step into the case on the ground that her statement was made in her official capacity and this, covered by the Westfall Act, they run the risk of being shut down because they didn't make that argument in this case regarding a defamatory statement by a government official and, thereby waived their right to raise that issue in the Harris case.

A mentor once told me "When you try a case, remember you're not just trying that one case - you're also many of your future cases so always look around the corner before doing anything" - meaning that much of what is done in an instant case will have ramifications in future cases.

The thing is that it's easy for uninvolved observers - even legal experts - to criticize decisions like this because we only are looking at the immediate case and we're not responsible for the outcome of this case or any future cases that are affected by it. But the people who had to make this decision not only have far more information than any of us have, they must weigh countless considerations that we don't have to think about. Those considerations include not just the instant case, but all of the possible ramifications for future action based on what they do now.

I am certain that Merrick Garland and his team thoroughly considered all of those factors and weighed and balanced them carefully. This was not done wily nily.

While I'm not involved in this decision, I have been involved in other very difficult and high risk legal and policy decisions and know how difficult and complex they are - and how those on the outside looking in, critiquing our actions, often base those critiques on snap assessments with a mere fraction of the information we had and absolutely no responsibility for the resulting outcomes and ramifications.

So I have gone out of my way to try to understand why DOJ took the action they did and after reviewing the law and precedent, I think I understand their position and believe it's a reasonable one, even if I might have recommended a different course of action had I been in room when the decision was discussed and made (but I really don't know what I would have recommended had I had actually been there because I wasn't there ...)

[cilla4progress]

58. Well, alot of strong legal minds disagree with you -

Including Joyce Vance and Laurence Tribe.

[StarfishSaver]

59. Strong legal minds often disagree with each other -;it happens all the time

And actually, Joyce Vance doesn't disagree with me. She said today that she understands why they made the decision and she thinks their reasoning is sound, even though she disagrees with the decision.

Link to tweet

[cilla4progress]

62. Barb McQuade?

Yes, people can and do disagree.

Good to keep it friendly.

Especially here.

[ChrisF1961]

19. Well said nt

[dpibel]

30. Other than getting the law wrong...

yeah.

[ChrisF1961]

33. How do?

[dpibel]

63. How so?

I assume that's what you mean.

How so is this: The OP says that SETTLED SUPREME COURT LAW DUDE MAN IGNORAMUS is that a sitting president cannot be sued.

He then refers to Jones/Clinton.

Which only says, like, the complete opposite.

So that, to my simple mind, kind of hurts the credibility of what the OP has to pontificate about.

[ChrisF1961]

64. Oh ok

[gab13by13]

22. All of you DOJ defenders

better not turn on Rachel Maddow right now. She is reaming Merrick Garland a new one. Tune in now and you can hear her take on the E. Jeanne Carroll case.

[George II]

24. She's not a lawyer. She's usually well prepared but on this case she's not, and she's wrong....

And I'm NOT sticking up for trump, I'm sticking up for the DOJ.

[gab13by13]

29. No she isn't

That's why she had Barbara McQuade on as a guest to talk about the E' Jeanne Carroll case. McQuade made perfect sense to me. MF45 in responding to Ms. Carroll was not performing his normal duties as president.

[George II]

31. There's MUCH more involved than this one case. Not defending trump in this defamation case....

...(not rape case) would jeopardize all the other cases the DOJ is defending under the Westfall Act.

I love McQuade, but she's being shortsighted here, not considering the overall picture.

[gab13by13]

35. Not true according to the lawyer on Rachel's show.

Are you a lawyer?

[speak easy]

39. Were does one draw the line?

Would WJC comments be with his presidential duties

I did not have sexual relations with that woman, Miss Lewinsky.
I never told anybody to lie, not a single time, never.
These allegations are false and I need to get back to work for the American people.

And if he added - Ms. Lewinsky is a pathological liar?

[StarfishSaver]

40. I'm a lawyer. And I think DOJ made a reasonable decision, even if I don't agree with it

And you know who else are lawyers? Former chief judge of the DC Circuit Merrick Garland, former Obama official Lisa Monaco, and civil rights lawyer Vanita Gupta - none of them slouches, wimps or Trump coddlers - and the other attorneys who made the decision - based on information and considerations that neither I nor you nor the lawyer on Rachel's show had.

I'll give those lawyers the benefit of the doubt here.

[George II]

65. From what I read, there are many cases where government employees are being sued...

Obviously we don't know the details. But the explanation I heard yesterday is that if the DOJ didn't defend trump in this case, their defense of the government employees in all those other cases could be compromised.

Unfortunately, many people reading about this immediately assume that the DOJ is defending trump in the rape case itself, that's not true. It's just the defamation lawsuit. trump made his comments while president, he didn't assault Carroll while president.

This is just my layman's take on this, I'm not a lawyer.

[StarfishSaver]

66. Your "layman's take" is correct

[George II]

67. ....

[Lonestarblue]

36. I agree. This is a weak case, and I hope a judge tosses the DOJ defense.

[uponit7771]

70. We all agree he wasn't performing his normal duties and that's up to a judge to decide for the sake

.... Of the bin administration remaining non-partisan

[George II]

23. Exactly. I wish people would read up on the Westfall Act. One attorney said earlier today that....

...if the DOJ didn't defend trump in this CIVIL suit (many are jumping to conclusion that it's the rape case, it's not) it would open the door and weaken a number of much more important cases.

More about the Westfall Act:

https://en.wikipedia.org/wiki/Federal_Employees_Liability_Reform_and_Tort_Compensation_Act_of_1988#:~:text=The%20Federal%20Employees%20Liability%20Reform,for%20the%20government%2C%20while%20giving

[rpannier]

38. Thank you sir

I have posted in numerous place about the Federal Liability Reform and Tort Commission Act, which is what the DoJ is arguing in support of
Unfortunately, I don't think many care
It is nice when I see other people bringing this up

[LiberalFighter]

26. His statement was not that of a President performing their duty.

[gab13by13]

32. Exactly,

and that's what a lawyer just said on Rachel's show.

McQuade used the example of a mail carrier having an accident with his mail truck while performing his duty as mail carrier, he would be backed up by the government. But if said mail carrier used his mail truck to crash into someone else's vehicle that is not an example of his performing his normal job, he would not be backed by the government.

Let's talk truth no matter the consequences.

[dalton99a]

37. +1.

[StarfishSaver]

43. What McQuade ignored ...

is that until there is proof (not just I heard it on tv and I believe it, but actual evidence produced in court) that the mail carrier was not acting in his official capacity, he is deemed to have been acting in an official capacity and the Westfall Act applies.

That's the case here. While we are all sure that Trump's comments had nothing to do with his job, that has not been legally determined yet by any court, so it can't just be assumed that he was operating in his private capacity.

By continuing this argument in the appeal, DOJ is essentially asking the court to rule on this issue. And the court will rule before any change is made in who the defendant actually is. If the court finds that, as a matter of law, Trump was acting in his official capacity when he made the statements, then it will rule that Trump be removed as defendant and replaced with the government. I don't think that is very likely. The more likely scenario is that the court will uphold the lower court ruling and find that Trump's actions related to the defamation were purely in his personal capacity and order the case to proceed with Trump as the defendant as a private citizen. But DOJ will have preserved its ability to protect future presidents from frivolous suits arising from official activities.

[uponit7771]

47. True but under Westfall Act the Biden admin SHOULD NOT decide that and it should be left up to ...

... judge for the sake of being non partisan.

I don't like it cause screw Putin's Whore but its the best decision relative to time and money.

I do think the US public deserves an explanation on it

[cilla4progress]

42. Are these the only 2 choices?

Because it looks bad.

And it's not being well managed on a PR basis, either.

Disappointing.

[speaknow]

48. All Carrol has to do is

Go on TV and say the same thing she said
about orange head, and lets see what he does.
Hunch he'll run his mouth again! Then she
can sue him again.

[uponit7771]

49. +1, once a judge declares Putin's Whore's actions weren't in the rhelm of him job then Biden will

... have a non partisan decision on whether the law suite can proceed and she can bend Benedict Donald in court

[certainot]

50. today i heard more attacks on hunter/jo biden re china money etc- on rw radio

in the court of public opinion prominent dems are constantly being accused of anything they can think of and pump out of 1500 coordinated unchallenged radio stations

they don't need no stinking JD

[dflprincess]

52. I have yet to hear a reasonable explanation for how

calling a woman a liar and saying you wouldn't have raped her because "she's not my type" has anything to do with a president performing their duty.

[StarfishSaver]

57. If you read the brief, you'll see that DOJ is not really making that argument.

They are making a broader argument that statements made by government officials - especially a president, whose line between personal and official is very blurred, fall within the Westfall Act. And in so doing, they're inviting the court to make the decision to except Trump's behavior from the law's protection in the specific case, which is a question of law, not fact, something that only the court can decide. It would be a serious problem if DOJ itself tried to make that legal distinction because that would require them to do an awful lot of line drawing on a case-by-case basis, which is a very difficult thing.

But in making the argument that they are making, they're giving the court a chance to find, as a matter of law, that Trump's actions don't fit within Westfall (which I think it will conclude) without DOJ having to get into the kind of line drawing that could be problematic in the future.

I am very sure the court will rule that Trump's behavior did not arise out of his official duties and order the case to proceed with him as the private defendant. If that happens, DOJ will have preserved it's ability to protect future presidents and other government officials, while not being required to protect them when they defame someone in the outrageous and sordid way Trump did

But even if the court lost their collective minds and decided that as a matter of law, Trump's behavior was an official act, the result would be that The federal government would be substituted as the defendant with Biden's Department of Justice representing it. That would not bode well for Trump at all as it would give DOJ full power to manage the case - including, declining to waive immunity, forcing Trump to appear in depositions and testify at trial, publicly releasing damaging and embarrassing information about Trump, stipulating to facts very unfavorable to Trump, admitting liability, or settling with E. Jean Carroll, among other things.

As I've said in other threads, if I were part of the team advising the attorney general, I don't know if I would have recommended this course of action. But at the same time I understand why they're doing what they're doing, and think it's a perfectly reasonable approach under the circumstances.

[jalan48]

56. **Breaking News**

Ted Lieu
@tedlieu
Letter from @HouseJudiciary Members to AG Garland of the @TheJusticeDept requesting that he reverse his decision for the DOJ to act as Trump’s personal attorneys in the rape defamation case of E. Jean Carroll.




https://www.democraticunderground.com/100215508987

[brooklynite]

60. Fortunately, AG Garland won't respond to a political slam ("act as Trump's personal attorney")

[jalan48]

61. Wow. Do you talk regularly?

[brooklynite]

69. No, but I have 20 years of experience comparing DU and blogosphere demands to the real world

[treestar]

68. People don't get that the legal system

decides the questions. The government has to take the government's side. The side they support has counsel too. Government lawyers are there to argue the government's side, not to just cave where our side wants a result. And that result would not stand. It's like they are thinking their side is the losing one, so there should be no case risking an adverse ruling.