If the Justice Department intervenes for Trump in defamation lawsuit, the case would ‘end’

This story was published in partnership with The 19th, a nonprofit, nonpartisan newsroom reporting on gender, politics and policy.

E. Jean Carroll is one of more than a dozen women who have accused President Donald Trump of sexual assault. Now, the U.S. Department of Justice is arguing that it should defend the president in a related defamation case.

Carroll, an author and longtime columnist for Elle, alleged the president raped her in a Bergdorf Goodman dressing room in the mid-1990s, an account she detailed in a book excerpt published by New York magazine last year.

Trump has denied Carroll’s underlying allegation of sexual assault. Carroll sued Trump for defamation in November after the president told a Capitol Hill newspaper that he could not have raped her because they had never met and, in addition, that she was “not my type.”

Defamation lawsuit: DOJ asks to defend Trump in rape accuser E. Jean Carroll's defamation suit

The Justice Department on Sept. 8 moved to intervene in Carroll’s civil lawsuit, arguing the case should be moved to federal court, where government lawyers would handle the case, taking over for Trump’s private legal team.

The 19th spoke to Leah Litman, a law professor and constitutional law expert at the University of Michigan, about what this means and what could come next in the case.

This conversation has been edited for length and clarity.

The New York Times reported that the Department of Justice has intervened in the defamation lawsuit Carroll brought against Trump. What does this mean?

Under federal law — the Federal Tort Claims Act — when a federal official or employee commits a tort [civil, or non-criminal wrongdoing] in the course of their official duties, then the United States will substitute itself as the proper defendant in a lawsuit against the employee. What the Department of Justice did is file a sheet of paper that says E. Jean Carroll’s lawsuit for defamation against President Trump should proceed against the United States as defendant, rather than Donald Trump, because, when Donald Trump said the statements that he did — including that she’s not his type — he was acting within the scope of his employment as president of the United States.

From a strategy standpoint, why would Trump’s private legal team want the case handled by Justice Department lawyers?

In a lot of tort cases, it’s actually a good thing for plaintiffs, because it provides you a defendant who could pay any judgment against you. Some federal officials don’t actually have the resources to pay a judgment for money damages. But in this case, substituting the United States as defendants for Donald Trump would end the lawsuit entirely because the United States is a government, rather than a person, and governments must consent to being sued. The United States has not consented to being sued for intentional torts, including defamation. If the Department of Justice successfully convinces the court to substitute the United States as a defendant for Donald Trump, the suit would be dismissed, and it would just end there.

What if the Justice Department is not allowed to intervene in the case and it remains a civil defamation lawsuit in state court?

Even if they lose, they successfully delay the evidence collection in the case, probably until after the election. The case was scheduled to proceed to the next phase of discovery because the courts have rejected Trump’s personal lawyers’ argument that he was entitled to immunity and couldn’t be sued while he was in office. So the next stage of litigation would have involved DNA tests on him and deposing him as a witness, and they get to delay all that while they litigate in federal court whether this falls within the scope of his official duties.

Does the Justice Department often intervene in defamation cases?

Most defamation cases against federal employees arise in what most people think of as workplace defamation situations, so a workplace supervisor or colleague says something about one of their coworkers either in a job reference or in the workplace. And in those cases, it’s pretty clear that the federal officer is acting in the scope of their employment as an employer or employee. There are a few cases where courts have said federal officers are acting within the course of their official duties or within the scope of their employment when they provide public-facing comments. But those public-facing comments either concern events that happen while the office holder was in office … or the comments concern national advocacy organizations or issue groups or issues that are the subjects of legislation.

Is the Justice Department’s move to intervene in this case typical? Atypical?

What’s typical about this is that when people sue federal officials or employees, often the United States will be substituted as a defendant. But that’s because federal officials or employees are typically sued for things that happened during the course of their employment. This is very atypical in that it is the president, rather than just any other federal official. And there just aren’t many cases involving circumstances where the United States tried to insert itself as a defendant for the president for conduct that occurred before the president was in office. It involves stuff that happened well before the president took office and completely unrelated to any of his official duties whatsoever.

What’s next?

The federal court will decide whether the president was acting in the course of his official duties when he made these comments.

This article originally appeared on USA TODAY: DOJ asks to defend Trump in accuser E. Jean Carroll's defamation suit