The idiom “timing is everything” maintains that success is directly related to when something happens. In the case of ex-President Trump’s defense in a defamation suit filed by one woman who is accusing him of rape, his timing may well lead to his success.

Because Trump’s allegedly defamatory remarks were made while he was president, the Department of Justice wants to defend him and if they prevail in federal court, American taxpayers will have to foot the bill for his defense.

Along with the timing, observers believe that Attorney General Merrick Garland is prioritizing institutional obligations over what the plaintiff, E. Jean Carroll, a writer and advice columnist for Elle magazine, called an “attempt to adopt a new rule that would create categorical immunity for any federal official who defames anyone while speaking to the press or responding to perceived critics.”

The Justice Department’s (DOJ) brief filed on June 7 in the Second Circuit of New York, argues that it must follow the federal Westfall Act, an amendment to the Federal Tort Claims Act (FTCA), which they argue immunizes Trump because his comments were made “within the scope of his office or employment” as president of the United States.

In an appearance before a United States panel on June 9, Garland defended his department’s action. “The job of the Justice Department in making decisions of law is not to back any administration previous or present,” Garland said. “The essence of the rule of law … is that like cases be treated alike, that there not be one rule for Democrats and another for Republicans, that there not be one rule for friends and another for foes.”

The case began when Carroll wrote a memoir entitled, What Do We Need Men For?: A Modest Proposal, which contained an account of how Trump raped her in a Bergdorf Goodman dressing room after he asked her advice on what gift to purchase for “a girl.” According to Carroll’s brief to the Second Circuit, after a pre-publication excerpt was published in The New Yorker, Trump “launched a series of vicious, personal attacks. He implied that she was too ugly to rape; that she had falsely accused other men of sexual assault; and that she had invented her story for money, or to sell books, or to advance a political plot.” Trump announced that not only did he not rape her, he had never even met her, even though a photo of the two of them together has been widely published. Carrol sued him for defamation on November 4, 2019.

The next legal event was on January 20, 2020, when New York State Supreme Court Judge Doris Ling Cohan ordered Trump to provide a DNA sample that could be compared to one that Carrol had saved on the dress she was wearing. Rather than hiring expensive private lawyers to defend him, on September 8, Trump gave the case to the DOJ, then headed by Bill Barr.

Two months later, Judge Lewis Kaplan denied DOJ’s right to assume the defense. He ruled that the Federal Tort Claims Act as amended by the Westfall Act does not apply to the President and that Trump was not acting within the scope of his employment when he defamed Carroll. “This commonsense conclusion follows directly from the evidence before the Court and from long-standing principles of respondeat superior liability,” Kaplan wrote. His decision was appealed to the United States Court of Appeals for the Second Circuit in New York. That brings legal proceedings up to date.

Carroll’s brief, urging the court to uphold Kaplan’s ruling, argued that each of these false and defamatory statements was spoken with actual malice, a key element in libel cases involving public figures. In legal terms, actual malice means he acted with the full awareness that he was lying or reckless disregard for the truth.

On June 7, the Department of Justice filed its reply brief. It makes an unexpected comment in its opening paragraph when it calls the ex-President’s remarks “crude and disrespectful.” It states that the case is not about whether Trump’s response was appropriate or even truthful, and it is not determinative of the rape charges in any way. Instead, it cites the FTCA and the Westfall Act and narrows the question to whether the “institutional interests of the federal government were implicated” because these Acts “make the United States liable for the torts committed by its employees within the scope of their employment.” It argued they were and urged the court to reverse the district court’s decision.

Turning to the language of the two acts, the DOJ brief concludes, “There is no reason to exclude the President from the Westfall Act’s expansive coverage.” “Nothing in the text, purpose, or history of the statutes suggests that they exempt from their coverage the President of the United States” and emphasized that “until this case, no court had questioned that the Westfall Act applies to the President.” In addition, they wrote that “the United States has never disclaimed liability for torts committed by an executive branch employee.”

Photo Source: E. Jean Carroll speaks to reporters outside a courthouse in New York on March 4, 2020. (Seth Wenig/AP) The DOJ brief further argues that coverage depends on the “general type of conduct at issue” and “not whether the specific act was wrongful.” Trump’s comments, they write, were within the scope of his employment because “speaking to the public and the press on matters of public concern is undoubtedly part of an elected official’s job.”

The DOJ’s next point relates to what they termed the District Court’s error in refusing to substitute the United States for the ex-President under the Westfall Act. Again, they defensively state that “even reprehensible conduct, including intentional torts, can fall within the scope of employment.”

President Biden’s comments during the campaign relate to the propriety of the DOJ’s actions. He specifically decried his opponent for asking the Justice Department to represent him in Carroll’s lawsuit. Yet, his Attorney General is doing just that. Biden also repeatedly asserted that during his administration, the Department of Justice would represent not him, but the people of the United States.

DOJ’s interpretation of that critical representation has raised controversy. The White House said it had not been consulted on its decision to file the brief and declined to comment on the litigation. Others defend the DOJ filing on the basis of the department’s “primary function to defend the institutional interests of the presidency.” They also seek continuity and do not want judges to believe their positions stem from politics instead of the law, as Garland explained. They fear that Carroll’s victory might weaken the institution of the presidency.

This danger was probably in their sights when Paula Jones sued President Bill Clinton for sexual harassment. Clinton did have private lawyers, but the DOJ sided with him and argued that allowing private suits against a sitting president to proceed posed “serious risks for the institution of the presidency.”

VOX sums it up this way, “Carroll, in other words, forced the Justice Department to choose between its institutional responsibilities and avoiding the repugnance of being associated with Trump’s behavior. It ultimately decided that its larger responsibilities must prevail.” The news organization also poses a troubling scenario: “Imagine, for example,” writes Ian Millhiser, “if a cabal of QAnon followers decided to bombard President Biden with meritless lawsuits. If Biden cannot rely on the Westfall Act, he could need to hire private counsel and spend considerable time defending himself against these suits, potentially distracting him from his official duties.”

The actions of Garland’s Justice Department seem to be following precedent. But surely it is time to define exactly where the “scope of employment” ends and the “commonsense conclusions” to which Kaplan referred, begin.