A judge has warned that the baffling move by the Department of Justice to side with Donald Trump in a rape defamation case last year could provide the former president a legal shield that could prevent him from being held accountable for inciting the Jan. 6, 2021 insurrection.
As reported by The Daily Beast, “the DOJ’s legal stance—that anything a president does is part of his official duties, and therefore makes him a federal employee immune to lawsuits—was widely criticized at the time. But it came up again on Tuesday, when a federal appellate judge found it necessary to issue a stark warning that obviously referred to holding Trump accountable.”
“Under this logic, so long as a president looks like he is engaged in conduct that is of the kind he is expected to perform—like speaking to a reporter or attending a government meeting—he is acting in the scope of his employment. But if that were so, then the mere presence of others would neutralize whatever a president did or said, for no president could be held accountable for damage done in front of a microphone or in an official meeting—whether defaming a citizen, exposing classified national security information, or inciting a riot,” wrote Judge Denny Chin in New York City.
“This is not, and should not be, the law,” he said, according to The Beast.
Legal experts agree.
Vermont Law School professor Jared Carter told The Daily Beast: “I think it’s a legitimate concern. What the judge is getting at is the very real possibility of unforeseen consequences.”
Professor John Pavia, who teaches a law school class at Quinnipiac University that focuses on questionable conduct by high-ranking government officials characterized the move as “as a win for Trump, no doubt” adding that “he is going to use it in civil and criminal matters.”
Still, Pavia doubts that the defense will actually work against Jan. 6 cases. He said the three civil cases against Trump for inciting a riot are distinct enough from the Carroll case that the Second Circuit’s ruling shouldn’t hold water.
“I don’t think it’s going to have the power of a landmark decision that’s going to somehow sway or have influence on everything else going on,” he told The Daily Beast.
Phil Andonian, an attorney on Rep. Eric Swalwell’s legal team, shares Pavia’s point.
“It’s apples and oranges… whatever he was doing in Carroll was fundamentally different than what he was doing on Jan. 6 in the lead up to the attack on the Capitol,” he said.