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Is It a Private Case or Public?

Terry H. Schwadron

Sept. 11, 2020

Good Grief.

We’re now going to have Justice Department defend a billionaire president in a private lawsuit on rape allegations that stem from two decades before he took office?

This is my taxpayer dollars at work?

Under Atty. Gen. William P. Barr’s legally twisted thinking, Trump was acting in his official capacity as president when he denied the allegations by New York columnist E. Jean Carroll, and thus qualifies for a defense by government lawyers as part of ever-broadening presidential protection.

It’s a perfect smack in the face by an attorney general aimed at putting Trump back in office, a culmination of sorts of turning words in impeachments, subpoenas, and the Mueller Report in ways to insulate Trump from trouble.

What is before the court is a civil matter — not criminal — a defamation lawsuit brought by Carroll who has accused him of raping her in a Manhattan department store in the 1990s. A legal proceeding of any kind would carry embarrassing overtones in required depositions, a DNA sample and possible testimony, perhaps even this fall.

This well-heeled defendant was fully able and did hire private lawyers to represent him., though they proved unsuccessful in persuading a state judge to agree that that the Constitution gives sitting president immunity against civil suits. That concept was tossed years ago in a suit against then President Bill Clinton.

For the Justice Department to intervene in such a complaint against a sitting president obviously is rare if not unprecedented. Citing the Federal Tort Claims Act, the Justice Department is taking the case from state court to federal court, where, among other things, they can better control the calendar — assuring that it is kicked until after the November elections.

It’s hard to see using Justice as a private law firm as anything but abuse of office.

Public v. Private

Here’s my question: If old allegations about bad behavior filed in state court are now to be considered worthy of federal public defense, then why shouldn’t we taxpayers be able to call for examination of these allegations by, say, Congress?

Up until now, I had viewed this allegation by Carroll as a private matter that may reflect on Donald Trump’s character, but not on his job performance as president.

It always has been a tacky case, and the details presented Donald Trump as a creepy dude.

Carroll, longtime columnist for Elle magazine, became the latest of a dozen women alleging inappropriate behavior by Trump when she sued him last November, claiming that he lied by publicly denying in an interview that he had ever met her. She wrote in a book excerpt published in New York magazine that Trump had trapped her against the wall of a dressing room at Bergdorf Goodman in Manhattan in late 1995 or early 1996. pulled down her tights, opened his pants and forced himself on her — and that she has a soiled dress in storage that proves it. She also insisted that security cameras captured both of them together before the alleged assault.

Specifically, she said Trump defamed her by publicly stating in an interview in 2019, while president, that the assault never happened and that he could not have raped her because she was “not my type,” and accused her of lying.

Where’s the public interest here, you might ask, other than in Trump now abusing the powers of the presidency to wrap himself in Justice’s protections.

But let’s not stop here. Is the Justice Department also going to defend against the other dozen other lawsuits from women? Against any tax or campaign finance charges that emerge from New York state prosecutors? Against any bank fraud that Trump may have committed over the years that may come to light if his taxes are finally turned over to prosecutors?

Where’s Responsibility?

If we’re going to be asked to accept public responsibility through this Justice move to defend Trump, when do we get to examine what’s he’s actually done as part of the public responsibility? Isn’t that what government oversight is for?

But Trump the President, with Justice and White House counsel at his back, has resisted public oversight of a long list of public policy matters — from immigration policies to the Ukraine mess to multiple contacts during the last election campaign with Russian operatives. Trump has argued successfully — only because of a Senate Republican majority — that he can pick and choose when to cooperate with Congress.

So, now we have a matter that all of us would see as private in which Trump and Barr find reason to defend with public dollars on the flimsiest of legal reasoning.

Maybe this Democratic House should call his bluff, and the Judicial Committee should hold public hearings on the goings on in Bergdorf Goodman. If it’s public business now, let’s make it really public.

Let’s be clear: Putting this case in the federal courts where the Justice Department has sway will set it up for elimination under exactly the same thinking that allows the department to enter it at all — the concept that a sitting president is legally immune, period. If a court upholds that concept, there is no legal remedy for anyone who ever had dealings with Trump.

That’s called abuse.


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