“The Attorney General shall defend any civil action…”

Breaking news: Biden's DOJ will continue to defend Trump in the defamation case that accuses him of raping journalist E. Jean Carroll.

It argues Trump should get immunity... and taxpayers should pick up the tab.https://t.co/to9nFfdmu5

— 𝙅𝙤𝙨𝙚 𝙋𝙖𝙜𝙡𝙞𝙚𝙧𝙮 (@Jose_Pagliery) June 8, 2021

That's not the position Biden campaigned on, or that he wants to take now.

UPDATE: Biden WH distances from DOJ stance on Carroll suit, issues statement saying it 'was not consulted by DOJ on the decision to file this brief or its contents’ and 'Biden and his team have utterly different standards’ More: https://t.co/D70fN1WJD5 https://t.co/8gRKZsISba

— Josh Gerstein (@joshgerstein) June 8, 2021

If you remember back to Waco and David Koresh, that was approved by Clinton's AG Janet Reno; not by Clinton himself. The White House doesn't always like what it's cabinet secretaries do. It’s also still better, by and large, when they don’t stop them.

When they obviously have not been listening to ATPL and listening to Ken say this is exactly the way the current DOJ would react. They would always argue this no later the administration until the law simply changes. Change the Westfall Act congress... get to it.

— Kayla thinks the internet is a shitstain on humans (@knew803) June 8, 2021

The pertinent provision of the Westfall Act:

(c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his department to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency. 

(d) (1) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

Not my area of expertise, but those provisions of the U.S. Code seem to leave the DOJ with no choice but to defend this suit, since the grounds for the suit are statements made by Trump while he was POTUS. The  “shall” there is the crucial word.  In the law, that word does not leave room for discretion, nor for political considerations.

The issue revolves, not around the offensiveness of Trump’s statements (the DOJ acknowledges in their pleadings that the statements were offensive), but around the question of what is “within the scope of his office…at the time of the incident.”  By necessity, a sitting President is never acting outside the scope of the office.

So if the DOJ is in an awkward position, it appears to be because of an act of Congress, not because Merrick Garland is acting against the wishes of Joe Biden.  The last AG to act against the sitting President’s wishes was William Barr; and he resigned almost immediately after. I don’t think we want to see Joe Biden continue that practice.*

*And no, I don’t think this case is a reason to repeal the Westfall Act.  This is another example of why a Donald Trump should never hold public office again, especially the highest office in the land.  Trump’s statements about Ms. Carroll were offensive and probably libelous, but sauce for the goose is sauce for the gander.  Six months in, I can already think of statements made by Joe Biden which someone could claim were libelous, and bring an action against the POTUS. Especially in the current environment, that could open the door to a blizzard of suits Biden would have to defend on his own, all while being effectively silenced. I don’t want Trump to “get away with it,” but I don’t want any President to face four years of harassing lawsuits.