To everyone with their shorts in a bunch over DOJ's argument in the Trump in rap

[dutch508]

Star Member StarfishSaver (16,060 posts)
https://www.democraticunderground.com/100215505672

To everyone with their shorts in a bunch over DOJ's argument in the Trump in rape case

Take a breath.

This is SOP - the Department needs to protect its institutional prerogatives because future presidents won't be criminals like Trump. Their position actually has nothing to do with Trump or his guilt or innocence at all. This is about being able to defend presidents and other government officials who aren't criminal rapists from lawsuits in the future.

Also, this isn't a good development for Trump. If you were in Trump's shoes right now, would you want your defense to be in the hands of the Biden/Garland Justice Department? I sure wouldn't.

I wouldn't be surprised if he settles it soon just to make it and them go away - which may also be part of DOJ's strategy.

 

dem4decades (7,761 posts)

2. Yeah, my shorts are in a bunch, this is the third time on three weeks DOJ

Has taken a Trump position. That's bullshit, and Biden said it was bullshit during the debates. What's changed?

And are you seriously suggesting that the DOJ lawyers will do a bad job defending Trump's case? Isn't that against their oath?

Star Member StarfishSaver (16,060 posts)

5. Of course they won't do a bad job. That's the point.

DOJ lawyers won't pull the kind of crap Trump's private lawyers would - and there's definitely no way Trump can bully/bribe them into making fools of themselves and turning the case into a circus the way he would if he were using private counsel.

I suspect the last thing Trump wants is to be dependent on ethical, competent lawyers in a case like this. As I said, I wouldn't be surprised if he settles it soon just to make it and them go away - which may also be part of DOJ's strategy.

 

Star Member BeyondGeography (36,817 posts)

3. Unbunch your shorts, there are institutional issues at stake here!

That’s a sure fire turnout winner right there, yessiree!

First we fail to defend the vote, then we give people reasons to stay home. But at least we aren’t creating potentially difficult precedents for the political class down the road. Yay!

Star Member Ocelot II (94,174 posts)

4. Once again, you ride to the rescue and bring us sanity. Thank you.

I was about to write something raising those points but I was too irritated at all the hand-wringing; I'd have just been snarky. Yes. It's just like the other ongoing cases that this DoJ is continuing to handle because it's obligated to defend existing law and policies, whether they actually like them or not. If they don't, the whole thing could be turned around in a bad way under another administration.

I am always reminded of the scene from A Man For All Seasons, where Thomas More (apocryphally) explains why he'd give even the Devil the benefit of the law.

Star Member The Magistrate (90,773 posts)

8. More Burnt To Many Protestants, Ma'am

He gets no credit for opposing Henry.

I rather doubt when actually in power, as opposed to being a character in a modern play, he gave much of anybody he opposed benefit of law.

 

Star Member The Magistrate (90,773 posts)

6. It's A Mistake, My Friend

And a bad one.

There is no institutional prerogative that requires the Government of the United States to stand for a President in a civil matter involving slander of a citizen with a grievance.

A President in such a situation ought to be able to secure counsel, and high-powered counsel to boot, so it is hardly the case justice requires the government to become the defendant in such a suit.

Star Member StarfishSaver (16,060 posts)

9. I don't often disagree with you, but I do here

It is the wise and appropriate move.

There may not be a specific provision of law for this exact type of case, but neither is there a specific exception in the law requiring DOJ not to defend a president under these circumstances. And it would be a dangerous precedent for DOJ to try to carve out an exception at this point.

I have no doubt that Merrick Garland, Lisa Monaco and Vanita Gupta carefully considered the law, precedents, and every potential outcome and ramification before settling on this course is action. They know what they're doing. They certainly know more and better than any of us do.

Star Member The Magistrate (90,773 posts)

12. Nor I With You

But I repeat, this a bad mistake.

It was outrageous that the attempt was made to substitute the government for Trump in this matter in the first place.

Norms are not restored by pretending they have not been breached, and attempting to carry on as if nothing had happened.

Norms are restored by quashing the acts which broke them, and condign punishment for those who violated them.

Star Member Ocelot II (94,174 posts)

13. But they are not defending the substance of Trump's defense; merely the principle

that some acts of a president can be attributable to, and therefore defended by, the government. I don't agree with the position originally raised by the previous DoJ (which, institutionally, is still the same DoJ; meaning the client was never Trump anyhow), but the argument being raised on appeal is where the line should be drawn between what is and what is not a governmental act when committed by a president. I believe the DoJ will lose the appeal. But I don't think they are doing anything nefarious or inappropriate by proceeding with an existing case.

Star Member StarfishSaver (16,060 posts)

17. Unfortunately, this is a fine but critical legal point that most laypeople don't understand

And it's an important and appropriate action for DOJ to take, notwithstanding the criticisms coming from various quarters.

 

Star Member The Magistrate (90,773 posts)

21. Engaging In Slander, Ma'am, Is Not Such An Act

The justification boils down to claiming anything done by a person holding that office is part of his official duties, and that is nonsense.

I do not think they are doing anything nefarious, but they are engaged in pettifoggery of high degree by pretending there is the least merit to the Trump attempt to weasel out of this suit.

Appealing the judge's ruling in the matter of Barr's memo is about as far as I am able to go with the 'institutional prerogatives' line. I disagree with that as well, mind --- the memo should be released, it ought not take a judges order to expose the malfeasance committed. But I understand the argument, and have some sympathy for it.

Star Member StarfishSaver (16,060 posts)

22. However, he has not been found to have engaged in slander

The issue is whether DOJ should be able to defend a president in a lawsuit brought based on something he did while in office. They're not arguing that he's immune from suit. The only issue is who represents him in court.

If Giuliani filed suit against Joe Biden tomorrow alleging that something he said in press conference last March slandered him, DOJ would probably want the option to defend him. And I doubt too many DUers would be demanding that they stay out of it and that Biden should hire private lawyers to represent him.

Star Member The Magistrate (90,773 posts)

23. And It Should Not Do So, Ma'am

In a civil matter relating to allegations a President has defamed a citizen pressing a grievance against him. It is a purely private matter, without the slightest bearing on official duties.

I would certainly expect President Biden to engage private counsel in such a matter, and he could do so with perfect confidence such a suit would be thrown out on summary judgement. I would oppose a claim it was a matter for the Justice department. The head of state is not a monarch here, is not 'the law speaking', and does not speak as the government whenever he or she speaks concerning matters not part of the Executive's remit. Which replies to reporters are not. Any more than is disparaging and insulting a citizen who makes a credible allegation of rape committed before the man held any office.

Star Member cilla4progress (16,464 posts)

27. I see it the same,

Magistrate!

We are dealing with fascistic evil here.

Though I know that's not the foundation of your argument.

 

RockRaven (8,571 posts)

30. Considering that your OP contains errors of fact and law that a non-non-lawyer would not make,

you probably should not throw shade at non-lawyers.

That last sentence of your OP is in the realm of what Pauli called "not even wrong."

Under the current DOJ argument, there is no personal liability for Trump and so nothing for Trump to need to settle.

Star Member StarfishSaver (16,060 posts)

35. Trump is still the defendant in this case and is therefore still subject to personal liability, notwithstanding DOJ's argument. So there is indeed reason for him to want to settle if he thinks the case would be handled by DOJ rather than by his lawyers representing him as the defendant.

And if DOJ succeeds in its argument (I don't think it will, but they needed to make it anyway), and the government is substituted as the defendant, he will have even more reason to want to get rid of the case since there's a good chance this DOJ would not waive sovereign immunity, as Barr's DOJ surely would have, and a lot of damaging information could come out - not to mention he would be subjected to discovery, depositions and testifying at trial, if it gets that far.

My OP is completely accurate as to the law and the facts.

 

Star Member W_HAMILTON (4,352 posts)

42. So is the lawsuit from E. Jean Carroll.

So, why the discrepancy?

E. Jean Carroll claims that Trump sexually assaulted her in the mid-1990s.

Star Member StarfishSaver (16,060 posts)

43. That's not the basis of the lawsuit

She's not suing him for sexual assault. She can't because the statute of limitations ran.

She's suing him for defamation based on statements he made while president.

It's a fine distinction, but a critical legal one.

Star Member MerryHolidays (5,921 posts)

46. So your "fine distinction" covers things that had nothing to do with being President?

Are you advocating this as the rule of law to emanate from this travesty of a case?

I again fail to see what is the "fine distinction" you seem to make about underlying events that go to the heart of defamation when a President was not even President. Rape and sexual assault, which are CLEARLY the underlying facts at issue in this defamation case, have NOTHING to do with any official function that I know of.

Even if a charge were frivolously made, a President hires his/her own lawyer and can seek Rule 11 sanctions and costs.

Please tell me the name of the DoJ lawyers who defended Bill Clinton in the Lewinsky and Jones actions? That's the closest parallel to this, especially the Jones matter, the facts of which occurred before President Clinton took that office.

Star Member StarfishSaver (16,060 posts)

47. Clinton was not sued for anything he did while president, so the Westfall Act did not apply.

Star Member uponit7771 (77,440 posts)

55. Who's to decide if Putin's Whore's slander "was acting within the scope of [their] office"?

I can understand the DOJ being involved here but once that is decided they should step away