Rep. Nadler tweet on the House Judiciary letter sent to the JD on decision to protect Donald Trump

[Autumn]

spending taxpayer dollars to do so. I agree with Rep Nadler. It is very misguided and I applaud all the signers.

Link to tweet

[Arazi]

1. What does he know??!!!111?? The armchair experts have spoken! 🤣

[dalton99a]

2. I am not asking or expecting Garland to put Trump in prison by Christmas.

I hold no such illusions.

In fact, I doubt Trump will ever spend a day in prison. Anywhere. (Find a jury that will convict him - it's our reality)

But I share the same sentiment as the Democrats on the House Judiciary Committee.

[George II]

11. This isn't a criminal case, it's a civil case. It has to do with defamation, not rape.

[secondwind]

20. Thank you!!

[Hortensis]

3. I'm sorry, but Nadler's claim the the DoJ is "defending" Trump (!) says to me

that this tweet is crafted to misinform the people. Oh, and throwing in "taxpayer dollars" for those who find that more offensive.

If he believes the DoJ should have a different stance on the issue involved, he should explain it in a way that doesn't troll for ignorant outrage. As it is, I don't know why he's doing this.

But I do know that when Trump's DoJ defended him, it was an extreme, dangerous corruption of purpose and principle, and it's wrong to encourage people to believe Biden's AG would continue Republican corruption in the DoJ. Badly done, Rep. Nadler.

[quaint]

4. He explains in the letter he sent, part of the tweet.

[Hortensis]

6. :) I haven't read it. But Quaint, that's like the 90% or more

of those who are expected to only read the short version in the tweet.

I believe the technique of leading with the lie in the title (or tweet) then covering ass if needed in the text is covered in a very early chapter of "Propaganda for Dummies," before the chapter on the more complex technique of leading with truth while still effectively delivering the deceits in the text vehicle.

[orleans]

14. here is the letter--in case you want to read it (i couldn't enlarge it on twitter so...)

June 8, 202

The Honorable Merrick B. Garland
Attorney General of the United States
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Dear Attorney General Garland,

Yesterday, the Department of Justice announced that it would continue the previous Administration’s push to represent former President Trump, at taxpayer expense, in a defamation lawsuit brought by E. Jean Carroll. That decision seems profoundly misguided. We write to urge you to reconsider.

Although DOJ maintains that its position has nothing to do with the merits of Ms. Carroll’s case, the facts surrounding the lawsuit matter greatly in understanding the deeply problematic implications of the Department’s actions. Ms. Carroll alleged in an article in June 2019 that Mr. Trump sexually assaulted her inside a dressing room at the Bergdorf Goodman department store in New York in the 1990s. Mr. Trump responded by denying the assault, accusing Ms. Carroll of lying about the incident, and stating that he could not have engaged in any sexual conduct with her because she was not his “type.” Ms. Carroll filed a defamation lawsuit against Mr. Trump based on these statements. She has been waiting for more than a year and a half for the opportunity to make her case on the merits.

As a policy matter, we are concerned that DOJ has taken the position that federal officials act within the scope of their employment—and, therefore, enjoy immunity from civil liability—whenever they defame someone, so long as there is some connection between the statement and their official responsibilities. Are we to understand that federal employees are free to engage in private tortious conduct for personal gain, so long as they maintain federal employment and can assert some pretextual benefit to the public for their actions? President Trump’s disgusting comments about Ms. Carroll had nothing to do with his official responsibilities as President, and the whole world knows it. Survivors of sexual assault, among other victims, deserve better.

Although we appreciate that the Department is constrained in the extent to which it can engage with us on matters related pending litigation, we request that you provide us with a briefing to explain the Department’s position in this case. We would, of course, not object if the Department changed its position before such a briefing can be arranged.

Thank you for your prompt attention to this matter.

Sincerely,



Jerrold Nadler Zoe Lofgren
Chairman Member of Congress
House Committee on the Judiciary



Sheila Jackson Lee Steve Cohen
Member of Congress Member of Congress



Henry C. “Hank” Johnson Theodore E. Deutch
Member of Congress Member of Congress



Karen Bass David N. Cicilline
Member of Congress Member of Congress



Eric Swalwell Ted W. Lieu
Member of Congress Member of Congress



Jamie Raskin Pramila Jayapal
Member of Congress Member of Congress



J. Luis Correa Mary Gay Scanlon
Member of Congress Member of Congress



Sylvia R. Garcia Joe Neguse
Member of Congress Member of Congress


Lucy McBath Greg Stanton
Member of Congress Member of Congress



Madeleine Dean Veronica Escobar
Member of Congress Member of Congress

Mondaire Jones Deborah Ross
Member of Congress Member of Congress



Cori Bush
Member of Congress

https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4586

[NYC Liberal]

19. To answer the letter's question:

Are we to understand that federal employees are free to engage in private tortious conduct for personal gain, so long as they maintain federal employment and can assert some pretextual benefit to the public for their actions?

Yes. That is exactly the case It's the Westfall Act.

FELRTCA confers such immunity by making the Federal Tort Claims Act the exclusive remedy for all common law torts committed by federal employees while acting within the scope of their office or employment.

https://www.justice.gov/jm/civil-resource-manual-33-immunity-government-officers-sued-individuals

The law also provides a remedy: you cannot sue a government official personally, but you can sue the government itself. That is what the DOJ is doing here.

[Lonestarblue]

21. The key phrase seems to be "acting within the scope of their employment."

How was Trump’s civil defamation in any way a part of his official duties as president?

[StarfishSaver]

26. It's a fine line

As noted in DOJ's brief, courts have held in the past that a government official's statements - even about personal matters and even when defamatory - can still be considered to be part of their official duties.

That is an especially fine line when it comes to the president, whose virtually every word and act can have official implications.

While it seems clear to most that Trump defaming a woman over her rape allegation is not an official act, the case law makes this a much closer call - and if the line is not drawn by a court, DOJ is in danger of being unable to properly address future cases that are not so egregious.

And the last thing anyone wants is for the case to proceed, Trump found to be liable and then an appellate court throws the whole thing out on the ground that, under Westfall, Trump was the wrong party and the federal government should have been substituted for him - but it's too late for her to refile her suit because the statute of limitations has run.

This issue needs to be resolved now by a court before the case goes any further.

Merrick Garland and the DOJ attorneys didn't just pull this approach out of their butts. There is sound legal reason for them to do what they are doing.

[NYC Liberal]

27. It's not that the defamation is part of his official duties.

Torts are not part of anyone's official duties.

It's that the tort has to be committed while the official is engaged in official duties. Speaking to the press has been held to be part of that.

[pazzyanne]

25. Thank you for this post, orleans.

Can't handle the tiny print in the OP.

[orleans]

37. you're welcome nt

[Xoan]

5. I recall that Obama chose Garland ...

to appease Republicans; not Democrats.

[FoxNewsSucks]

23. That's correct.

It was disappointing at the time, and it seems most here have forgotten that.

[Sur Zobra]

7. If Trumpass' DOJ defense of him

“was an extreme, dangerous corruption of purpose and principle,” then how is it suddenly principled for the DOJ to continue defending him

[StarfishSaver]

8. Thank you

[Autumn]

9. You are saying a Democrat, a good one is deliberatly misleading, actualy lying, to us for some

nefarious reason? Do tell. I remember Gardner was chosen because he would appeal to the Republicans, I begin to see why.

[Hortensis]

10. I should have said that he was making political use of ignorance

and anxiety to fire up support. Hardly a new tactic, and unfortunately usually an effective one.

But my big complaint is that this emotional punch harnessed deceit and fear for its power. Fear that Biden's AG is corrupt, as Trump's were. It's not okay. 100,000,000 people didn't vote in 2016, and most of those claimed to believe they had nothing worth voting for.

[Autumn]

12. No he isn't making political use of ignorance. I think a lot of posts push that ignorance bullshit

to avoid uncomfortable discussions. Let's see, anonymous posters or Rep. Jerry Nadler???? What to do, what to do? Easy. Democratic Rep Jerry Nadler,100% all the way

[jalan48]

13. +1

Yes, uncomfortable discussions make cheerleading and hero worship much more difficult.

[Autumn]

33. That they do. Always the same ones, only thing different is the reasons for the "WTF"

[StarfishSaver]

29. I wonder how many of those upset that anyone has the nerve to criticize Nadler today

were "Democratic Rep. Nadler, 100% all the way" two years ago when people here were absolutely trashing him for how he handled the hearings related to Trump's impeachment. A whole lot of people around here weren't so in love with him then.

But now that they think he's going after Biden's attorney general, he's the second coming.

Interesting how that worm keeps turning ...

[Autumn]

32. I must have had the right people on ignore. I'm of the mind the Dems handled that just right.

I find some of the worms that turn up to be interesting... for a while.

[StarfishSaver]

15. How is that any different from accusing Garland of being corrupt, complicit, naive, weak or stupid?

all of which he:?'s been accused of by DUers in the past couple of days ...

[Autumn]

18. Big Difference Garland is not an elected Democrat. If memory serves Garland was chosen

because he could appeal to Republicans, I think maybe because he has always come off as a moderate Republican.

Must we agree with and watch what we say about all political appointees now too?

[StarfishSaver]

22. Being an elected official usually makes someone MORE susceptible to criticism, not less

Not to mention more likely to have their motives questioned.

At least that what I'm told when Nancy Pelosi and other members of the Democratic leadership are the subjects of scorn and derision

But that's not the point. I'm simply noting the hypocrisy of people getting upset that someone is questioning the language, tactics, and motives of Democratic politicians while attacking the competency, tactics, and motives of a Democratic member of President Biden's cabinet.

[Hortensis]

30. He was nominated and appointed by Obama and Biden and

confirmed by our Democratic senators. He was chosen FIRST for his strong reputation for integrity and fine legal mind earned him and the great respect in which he's held by peers across the political spectrum.

[Autumn]

31. Also because he could and did appeal to the Republicans.

Just not enough for them to give him a seat on the SC. I wonder if Mitch is kicking himself now.

[triron]

46. kudos to you.

[KPN]

17. The letter provides a pretty thorough and clear explanation. I tend to agree with Nadler.

Public defamation of citizens by any President, let alone Trump, is neither an admirable or desirable practice. Why should we deem it acceptable for the Justice Department to defend that?

[StarfishSaver]

24. DOJ isn't defending that behavior at all.

[KPN]

40. So what are they defending?

[StarfishSaver]

41. They're not defending anything at this point. They're not a party

They're just telling the court that, under Westfall, if Trump's actions were done in the course of his official duties, they are required by law to replace him as the defendant.

I know it sounds crazy, but courts have held that government officials statements, even defamatory ones about personal matters, can be "official" acts.

I don't think it's likely that the court will find that these particular statement fall within that definition, but what DOJ is doing is not as outrageous as it sounds.

[KPN]

42. So it comes down to a court ruling on whether or not

it was an “official act”? Can the court actually rule that this does not fall within the realm of an official act? I was a federal employee/manager in my career. Many federal managers purchased insurance to protect themselves/their assets from lawsuits in the instance and case of the agency deciding not to represent them because (as I recall) the act or decision the manager was being litigated on was determined to be outside of the manager’s job description, delegated authority or violated agency policy or ethics.

The agency could make that choice. The employee/manager could challenge that decision, but the agency could decide not to provide legal representation. Is that not true in the case of the Presidency?

[StarfishSaver]

47. Yes, the court can make such a ruling.

DOJ could decline to do this and that was an option. But that course of action also carried serious risks and consequences.

It was surely a tough call and legal experts disagree about whether DOJ's decision was the right one, but I don't think it can be said - nor is anyone who understands the law or how decisions like this must be made saying - that taking this option was unreasonable or without merit.

[MerryHolidays]

48. Well, that's exactly what pretty much everyone was saying when Barr intervened in 2020

It's interesting that you're now agreeing to the discretionary point that the "DOJ could decline to do this and that was an option". You might want to amend your several other posts in other threads where you, in effect, say that the DOJ had to intervene in this case.

I am glad you finally see that point that Barr's decision to do that was purely political to protect trump and the United States was under no such obligation to do this in the first instance.

Speaking of which, is there any citation to any legitimate source that Barr's decision to invoke the Westfall Act last year in a case involving slander arising out of a rape/sexual assault was, to paraphrase you, "reasonable and with merit"? That's the starting point. The decision to invoke the Westfall Act was, without any doubt, roundly panned last year except by trump supporters AFAIK.

Once that's established (i.e., whether the United States was obligated as a matter of law to invoke the Westfall Act in this case in the first place), THEN we get to whether the DOJ's continuation in this case is required. As I have consistently said, and as is done in litigation at all levels, parties (or, in this case, the third party United States) can change their position and, if necessary, non-suit or seek withdrawal. That is done frequently.

Let the United States withdraw and let trump challenge that in his private capacity if he wants, hiring his own lawyers. This is solely a matter between Ms. Carroll and trump.

I am no expert on the Westfall Act, but it's been around for 30 years. Why would the DOJ want to use these facts as a test case as to the law's applicability and scope in relation to POTUS? After all this time? And where donald trump is, at least in the near term, the beneficiary?

And, finally, let me make something perfectly clear to all DUers reading this: my criticism of Merrick Garland is strictly limited to this case. I do not agree that the DOJ should be telling us everything they are doing on corruption cases, the January 6 cases, other investigations, etc. I have absolutely no reason to believe that those cases aren't proceeding in our country's best interest. Nor am I entitled to know what is going at the moment - it's far too early.

He has been Attorney General for just a few months, and he has inherited a holy mess. Let's give him the time and latitude he needs. He is a seasoned lawyer and judge, and I trust him completely. But that's the point: there is so much damage to fix, voting rights to defend, and prosecution/investigation regarding corruption, sedition, domestic terrorism etc etc etc, why would you want to waste time on this case? This doesn't even include the "normal" things the DOJ would be working on prior to trump's disastrous 4 year reign of terror and error. This case is WHOLLY irrelevant to anything else.

Equating criticism of Merrick Garland in this discretionary case is not the same as bashing him for all purposes. Not even close. I am struggling to find anyone who supports the United States' continued involvement in this purely private matter. I believe in another thread that someone cited a few tweets by Teri Kanefield, a legal commentator, trying to find the positive reasons to continue this case. In the end, even she declined to take a position. That's the closest I have seen to someone defending this, and it's not even a defense.

That we are seriously pitting the House Judiciary Committee Dems (and even Candidate Joe Biden in September 2020, who slammed the US's involvement in this case) vs. the Attorney General is testament to the problems with a case that never should have been brought in the first place. And who is the immediate (and possibly permanent) beneficiary of this? donald j. trump and William Barr.

You lose me somewhere as to why the DOJ would want to continue this case.

[TheRealNorth]

16. If this issue is not litigated now....

Republicans will be free to do it again and use the courts to run out the clock. Better to get an answer where the courts stand on this issue.

[PRETZEL]

28. I agree,

The issue needs to be litigated and for the judge to rule.

But from what I see (IANAL) is that if the judge rules that the slander against Ms. Carroll was covered under the Westfall Act, then she can appeal that decision and can continue to appeal all the way to the Supreme Court if possible.

If the court rules that this is outside of law, then I would guess the DOJ would withdraw from the case and make him hire outside counsel.

But no matter how you look at it, it's a bad law. Bad laws need to be dealt with in Congress. And now that this bad law is front and center, maybe that time has arrived.

[StarfishSaver]

34. Actually, it's a good law - a very good one

This issue is a rare problem, an anomaly, that can and needs to be clarified by a court. There's really no way for Congress to write something into the law that won't overcorrect this very limited and specific problem.

[PRETZEL]

35. I'm not so sure though

and I've been following and have a lot of respect for your position and your support of it,

But is the real question that needs to be addressed a matter of scope and relativity to what would constitute covered speech by a covered member?

If I call you a liar in a public forum over a piece of legislation, or in a committee, or in any statement in my capacity as an elected official, then maybe I would be more convinced.

If I call you a liar in a public forum for claiming that I had raped you years before and threaten to sue you, even though I am an elected official, why would that then also be covered?

I totally agree that this is an anomaly, but I fully believe that there must be a distinction made between what would be covered speech under this particular law. The fact that it's now seen the light probably makes it a good time to address it.

[StarfishSaver]

36. Here's the problem with that

I agree that most defamatory statements should not be covered under this law.

But here's the rub - Whether a statement is defamatory is not decided in the pleadings or in the early stages of the proceedings. The case has to proceed to a judgment before it can be said that a statement is defamatory - that's the precise issue that must be decided at trial.

So let's assume another hypo: Suppose Vice President Harris today says something in an interview about her predecessor's performance in and Pence gets mad and sues her for slander.

Arguably, if her comment was untrue and made with malice, it was a slanderous statement and, depending on how a court rules, it might not be considered an official act under Westfall. But if her comment was true and therefore not defamatory, her actions would be covered under Westfall.

But we wouldn't know the answer to that question until very far into the case after it's tried and a verdict is rendered whether or not the comment was defamatory.

DOJ couldn't say "Well, the comment was defamatory so we're not going to defend the case" - and leave Harris to defend this action as a private citizen... only to have it turn out at the end of the case that the plaintiff sued the wrong defendant.

That's why in a case like this, where the application of Westfall is necessarily determined by whether or not the acts alleged, if true, would be covered by Westfall, it is a wise course of action for DOJ to allow the court to make a ruling, as a matter of law, before it proceeds any further.

Normally, if there's even a possibility that a government official's actions were connected to their official duty, DOJ would step in without asking the court for a ruling since there's not usually the kind of overlap/confluence between the personal and official nature of the job that there is when a president is involved, so they don't need to get a decision early on. But as with most things involving Trump, this is an anomaly.

[PRETZEL]

38. I think that's a very well put explaination

thanks,

[StarfishSaver]

39. You're welcome

[MerryHolidays]

49. The scenario you posit about VP Harris and Pence is a good test case

for the Westfall Act. To me, without any doubt, that would be protected, as VP Harris is likely acting as a VP (to the extent the VP is covered under Westfall). And, to the extent there isn't any law on this in relation to POTUS or the VP, it would be good to have an understanding as to how the courts see it.

That is very different than a test case involving sexual assault/rape as the facts giving rise to the defamatory words at issue. Let's look at what trump said that gives rise to the allegations of slander:

“I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened, OK?” the president said while seated behind the Resolute Desk in the Oval Office.

https://thehill.com/homenews/administration/450116-trump-vehemently-denies-e-jean-carroll-allegation-shes-not-my-type

What exactly does this have to do with being POTUS? That he sat at the Resolute Desk in the Oval Office when he said it. That's it.

Exactly what POTUS function is related to the statement "she's not my type"? Or that a person who (unfortunately) became President is denying that he raped a woman when he was not even President. This is what the DOJ is using our tax dollars to discretionarily litigate? Seriously?

That is also a far cry from Pence's suing VP Harris because she criticized him in the hypothetical posed. This distinction between the scenarios is clear as can be. And that is the absurdity of bringing in the United States into this case.

And why was the US brought into the case? This NYT article lays it out well, as it was purely to help trump and slammed everywhere: https://www.nytimes.com/2020/09/08/nyregion/donald-trump-jean-carroll-lawsuit-rape.html . Even candidate Joe Biden slammed it last September.

I would have no issues if the United States took the VP Harris/Pence case (even if the parties in the hypothetical were switched). That is a legitimate question as to whether the comments were part of the covered person's duties.

The rape allegation against trump is totally not part of a President's functions in any possible way. That's the issue. And it was discretionary, not mandatory, that Bill Barr did this last year. There is no reason for Garland to continue in this case.

[DiamondShark]

43. To all the non lawyers...

You lose EVERY argument you do not present in court. DOJ is protecting FUTURE CASES.

Prove me wrong.

[jcgoldie]

44. Its a good letter by Nadler

And he hits on the important points. I fail to see how someone can say Barr was corrupt in using the DoJ as the president’s private legal defense and then turn and say that Garland is justified in pursuing the appeal. The claim that this is not a defense of Trump which has been repeated frequently in support of the decision by the DoJ to continue this line of argument is completely hollow. If the DoJ succeeds who benefits? Only one person.

[Autumn]

45. Yep. Only Trump benefits. If Barr's DOJ did this the outrage would be epic.

[MerryHolidays]

50. Please see my posts 48 and 49.

I would hasten to add that in no way do I see Merrick Garland acting in bad faith. I just think this a poor decision to continue in this case and wasting the United States' resources when there is so much for the DOJ to do re: voting rights, sedition cases, domestic terrorism etc.

trump and Barr are only ones who benefit from this. Not you, not me, not Ms. Carroll, and not the United States. Why waste the time on this? Let the US withdraw and let trump fight that.

This isn't even close to what the Westfall Act was meant to cover, to the extent it even covers the President at all.