A detailed explanation of what DOJ must do to have E. Jean Carroll’s defamation case against trump dismissed under the Westfall Act. “The Bulwark” is one of the few Republican publications concerned about truth & the rule of law. https://thebulwark.com/trumps-desperate-doj-dodge-on-defamation/?utm_source=afternoon-newsletter&utm_medium=email&utm_source=The+Bulwark+Newsletter&utm_campaign=dcba01bcca-EMAIL_CAMPAIGN_2020_09_10_09_43&utm_medium=email&utm_term=0_f4bd64ac2e-dcba01bcca-81132418

“DOJ’s maneuver is the latest in a string of actions by Attorney General Bill Barr that look more like the work of a personal defense attorney than that of a public servant who pledged to represent the interests of the United States and the American people.

“Barr’s decision—apparently taken at the request of the White House—puts the institution of DOJ in a painfully tough spot. Under the law governing the next steps in the case, …

“DOJ is likely going to have to justify its decision to use taxpayer dollars on Trump’s personal behalf in connection with a sex-mired set of facts. It will be a hard sell in any court. …

“Carroll brought her suit against Trump in his ‘individual capacity.’ This phrase is critical. Governments generally cannot be sued unless they waive what’s called sovereign immunity.

In a statute called the Westfall Act, though, “Congress protected federal employees from being sued for certain claims if they were acting on the job.

“As a result, defamation suits cannot be brought against the federal government or federal officials if they made the allegedly defamatory statement as part of their work for the federal government. …

“DOJ’s intervention in Carroll’s suit is thus an attempt to get her case thrown out entirely by claiming that Trump is totally immune from the lawsuit—even though a private person who did the very same thing that Trump is accused of would not be immune.

“But DOJ has a problem. In order to step into Trump’s shoes, it had to file a piece of paper certifying that, when Trump called Carroll a liar, he was ‘acting within the scope of his office or employment at the time of the incident out of which the claim arose.’

“Although most federal employees would prefer to have the government pick up the tab for lawsuits filed against them, DOJ only jumps into suits at its discretion. It is optional.

“Under the governing regulations, deciding whether to intervene involves a two-step test.

“First, the conduct must have occurred in the scope of the employee’s work. Second—and this is critical—‘the Attorney General or his designee [must] determine[ ] that providing representation would otherwise be in the interest of the United States.’

SCOTUS has held that the trial court can determine whether the case belongs in federal court.

The judge “will likely hear argument from the DOJ that defending Trump in a defamation suit involving an alleged rape while he was a private citizen somehow serves the interests of the United States of America.

“This legal immunity ploy by Trump is all too familiar. The Supreme Court in Trump v. Vance just rejected a similar argument by Trump’s lawyers that his family, his banks, and his accountants are totally immune from a grand jury subpoena because of his position as president.

“The Supreme Court was hung up on the notion that nobody is utterly above the law—even Trump.

“Too bad the Department of Justice no longer appears to care.”

“Kim Wehle … is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation … .” Thanks for the explanation, @kimwehle.