Biden Justice Department takes up Trump defense in lawsuit linked to '90s rape accusation

NEW YORK — The Justice Department is going ahead with the controversial defense of former President Donald Trump against a defamation lawsuit brought by a woman who accused him of rape in the 1990s.

The DOJ defense of Trump against writer E. Jean Carroll, who accused him of defaming her in his public denial that he raped her in a department store dressing room more than 20 years ago, has drawn bitter criticism — including from then-presidential candidate Joe Biden.

“Can you remember any Republican president going out there, or former Democratic president, ‘Go find that guy and prosecute him’? You ever hear that? Or: ‘By the way, I’m being sued because a woman’s accused me of rape. Represent me. Represent me.’ ... What’s that all about? What is that about?” Biden said at the time.

But in its brief filed Monday night with a federal appeals court, the Biden administration’s DOJ is claiming the same legal position the Trump Justice Department outlined.

The Department of Justice filing with the New York-based 2nd U.S. Circuit Court of Appeals argued it wasn’t endorsing Trump’s conduct toward Carroll, though it asserted a law governing suits against federal officials justified the government’s move to take over the former president’s defense.

“In making and defending a Westfall Act certification … the Department of Justice is not endorsing the allegedly tortious conduct or representing that it actually furthered the interests of the United States. Nor is a reviewing court making any such determinations in upholding the Department’s certification,” the acting head of the Justice Department’s Civil Division, Brian Boynton, wrote in the submission.

Boynton also stuck to the Trump administration’s DOJ stance from last September — that Trump was acting in the course of his official duties as president when he denied Carroll’s rape allegations.

“Speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job,” Boynton added. “Courts have thus consistently and repeatedly held that allegedly defamatory statements made in that context are within the scope of elected officials’ employment — including when the statements were prompted by press inquiries about the official’s private life.”

The new brief acknowledges the stance made by then-Attorney General William Barr in Trump’s defense, one that drew criticism over using government lawyers to fight Carroll’s defamation suit on behalf of Trump.

“When members of the White House media asked then-President Trump to respond to Ms. Carroll’s serious allegations of wrongdoing, their questions were posed to him in his capacity as president,” the Justice Department wrote in Monday’s reply brief. “Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office.”

Last October, U.S. District Court Judge Lewis Kaplan rejected the government motion to defend Trump as the defendant in Carroll’s suit, and the DOJ appealed to the 2nd Circuit to overrule Kaplan.