Gain Of Function*

As Judge Lewis Kaplan (a brilliant judge, by the way) held: "while commenting on the operation of government is part of the regular business of the United States, commenting on sexual assault allegations unrelated to the operation of government is not."https://t.co/A7j4ZFMSxY

— Elie Honig (@eliehonig) June 8, 2021

DOJ argument stretches logic to say Trump was acting within scope of his job duties as POTUS when he allegedly defamed ⁦@ejeancarroll and denied rape⁩. I’ll join ⁦@HallieJackson⁩ on @MSNBC at 10am ET to discuss the law and possible consequences https://t.co/wCShFzQhgW

— Barb McQuade (@BarbMcQuade) June 8, 2021

It’s horrific that Donald Trump raped ⁦@ejeancarroll⁩ in a NYC department store years ago. But it’s truly shocking that the current DOJ would allow Donald Trump to get away with lying about it,
thereby depriving our client of her day in court. https://t.co/ogc3QVDYev

— Robbie Kaplan (@kaplanrobbie) June 8, 2021

Like Carroll’s attorney, I find it “shocking that the current DOJ would allow Donald Trump to get away with lying” about raping Jean Carroll, “thereby depriving her of her day in court.” The job of POTUS doesn’t include defaming accusers of pre-POTUS rapeshttps://t.co/B7wq5LG4SI

— Laurence Tribe (@tribelaw) June 8, 2021

I don't disagree with these positions on this case.  And I'm assuming the Westfall Act applies here (I don't know why it wouldn't).  The "shall" in that statute carries a lot of obligation with it; and underscores why we have a judicial system structured the way we do.

Judges are government agents, as are attorneys employed by the DOJ.  We tend to forget that, because the system works so well.  The DOJ makes a legal claim in court, judges assess that claim and accept or reject it.  That's what judges do.  That's what we expect them to do.  If the Westfall Act applies to this situation (I haven't read the DOJ pleadings, I'm just assuming it does), the DOJ has no discretion: they have to mount this defense.  If the courts reject that position, then the system has worked as it should.  The DOJ has no choice but to take this position in this case.  Ms. Carroll's lawyers have their position, representing their client (although I'm never too impressed when lawyeres argue their case on the op-ed page of the NYT.  Save that stuff for the oral arguments.).  The courts should decide who has the right understanding of the law in this case.

That's the way our system works.  In this case the DOJ is in the same position as a criminal defense lawyer whose job is to see that the prosecution proves its case.  The DOJ may not like the position it is in; but it has an obligation to present its case.  If the judge rejects their argument, the DOJ has still done its job.

Laurence Tribe says "The job of POTUS doesn’t include defaming accusers of pre-POTUS rapes."  The DOJ is, under law, obligated to argue that it does.  The courts will decide who is right; and that will mean the system has functioned as designed.

*What?  All the kewl kids are saying it!