Will Fani Willis use this new DOJ position in a Trump indictment?
时间:2024-09-21 23:00:37 出处:产品中心阅读（143）
On Wednesday, the Justice Department announced a reversal of a position taken two years ago at the start of Attorney General Merrick Garland’s tenure. Back in June 2021, the government said it would defend Donald Trump in E. Jean Carroll’s original lawsuit against him for defaming her when he was president.
No longer, the department declared this week; intervening events connected to Carroll’s case had brought about a reevaluation of the government’s legal stance.
It’s not hard to surmise, however, that other intervening events not directly related to Carroll’s suit were also at work. It seems clear that the investigations of Trump over the past two and a half years have shifted Garland’s thinking about his primary mission and about how the department can best protect the rule of law.
Critically, the reversal of the department’s previous position in Carroll’s civil case might have significant ramifications not just for that case but for a potential further looming prosecution of the former president.
Let’s go back to Carroll’s initial suit, though. The issue there is whether the Westfall Act requires the DOJ to defend Trump for his statements about Carroll when Trump was president.
In May, a Manhattan jury found Trump liable for defaming her and issued a $5 million verdict. But that case covered conduct that took place after Trump left the White House, and so the Westfall Act was not an issue, as the Justice Department said it was in this latest case until Wednesday.
AdvertisementThe Westfall Act generally provides that when federal employees are sued for wrongdoing, so long as they were acting “within the scope of [their] employment” at the time of the alleged misconduct, the attorney general must defend the action. The individual working for the government and acting in an official capacity, including a president, is immunized.
Advertisement Advertisement AdvertisementCritically, in Carroll’s case, if the government were to be substituted for Trump under the Westfall Act—as Garland originally requested—her action would be over because the federal government can’t be sued for torts like defamation.
Garland’s initial decision to assert the act in Trump’s defense—following in the footsteps of Trump’s own DOJ—earned Garland widespread critique from both legal scholars and Democrats. Garland countered, “The job of the Justice Department and making decisions of law is not to back any administration.”
AdvertisementIt seems evident that underlying that statement were Garland’s deeper beliefs. As Jennifer Rodgers, a former federal prosecutor and lecturer at Columbia Law School, put it, “He’san institutionalist.” Garland’s focus when he became attorney general was singular—restoring the independence and integrity of the Justice Department. Under the previous attorney general, William Barr, it had gained a reputation for partisanship and inseparability from Trump.
For Garland at the time, changing the department’s position in Carroll’s case from a previous administration’s would not have served what was then his primary mission—the restoration of a non-politicized DOJ. In addition, as Rodgers explained, Garland’s decision as an institutionalist was less about Trump than it was about the department’s role defending the office of the presidency.
Advertisement AdvertisementFurther, credibility issues can result for federal lawyers if the department becomes known for reversing legal positions as soon as the presidency changes to the other party. As a former judge of 23 years, Garland is someone who, by temperament, believes in the importance of stability in the law.
Together, these factors show why his turnaround this week could not have been easy for him. It likely required a powerful, new motivation beyond the changed events in Carroll’s case.
AdvertisementFirst among those intervening events in her suit itself were Trump’s statements about Carroll after leaving office, statements virtually identical to those he had made from the White House. Those later statements were the ones that the Manhattan jury determined were defamatory. Statements that Trump made as a private citizen indicated to the DOJ that his similar White House denigrations of Carroll were also made for personal, not presidential, reasons and therefore not part of his official duties while in office.
AdvertisementEven so, there’s surely more behind Garland’s change of mind than what his lawyers explained in court on Wednesday.
Garland’s broader shift in direction was evident as early as last November, when he appointed special counsel Jack Smith. As the New York Times reported at the time, “Mr. Garland has shown a growing willingness to operate outside his comfort zone.”
Advertisement AdvertisementThat month, Garland was faced with the extraordinary evidence marshaled by the House Jan. 6 committee of Trump’s role in the insurrection, as well as the evidence of Trump’s willful retention of classified documents at Mar-a-Lago and alleged obstruction of justice. To that then-existing mountain of facts, Smith has continued to pile on evidence, further validating Garland’s shift on that front—and giving him more reason to change position in the Carroll matter.
AdvertisementThe constant for Garland is his commitment to the rule of law. What’s new within that overarching commitment seems to be a changed approach, replacing his original determination to avoid at all costs the department’s being accused of being politicized, even if by bad-faith actors. What seems to have overridden his hesitation is the overwhelming evidence that Trump has been and remains singularly focused on destroying the Constitution.
That, the rule of law cannot abide.
AdvertisementRelated From Slate
Austin Sarat
Judge Aileen Cannon Just Got Her First Big Trump Trial Test
Read MoreLet’s take note of one potential collateral benefit of Garland’s revised approach in Carroll’s case. The new decision that Trump was not acting within the scope of his presidential duties has application to a just-sworn Fulton County, Georgia, grand jury’s expected indictment of Trump there.
AdvertisementShould that indictment occur, Trump will surely do what he has tried in Manhattan District Attorney Alvin Bragg’s case in New York—seek the tactical advantage, including of potential delay, from removing the case from Georgia state court to federal court by again making a “colorable” claim that the behavior in question was part of his official duties. If so, federal law entitles him to be tried in federal court.
Popular in News & Politics
- A Supreme Court Justice Gave Us Alarming New Evidence That He’s Living in MAGA World
- We’ve Been Entertaining an Illusion About the Supreme Court. It’s Finally Been Shattered.
- Them Supreme Court Boys Are at It Again
- In a Week Full of Hypocrites, Greg Abbott Came Close to Winning the Crown
Here’s where Garland’s new decision comes in. If Trump is indicted in Georgia and he removes the case to federal court, a judicial decision about whether to return the case to state court in Atlanta will turn on a legal issue similar to the one the attorney general just resolved against Trump: Was Trump acting as president or as an individual seeking reelection when, in December 2020 and January 2021, he pressured Georgia officials to reverse Joe Biden’s 2020 victory in the state?
AdvertisementGarland’s new position in the Carroll case now lines up perfectly with the one taken in the preliminary stages of the Jan. 6 cases: that these were not protected presidential actions. Although Carroll’s allegations and those that Trump acted unlawfully in Georgia are unrelated, Garland’s decision in her case that a president can be acting outside the scope of his official duties while in office strengthens Fulton County District Attorney Fani Willis’ hand.
But for now, the central point is this: We have every reason to believe that we have an attorney general who not only is committed to the rule of law but learns from facts and is willing to change his mind in light of them, even if it subjects his department to partisan attack from Donald Trump’s defenders. That is the kind of chief law enforcement officer the country deserves.
Tweet Share Share Comment