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Justice Department blasted for late bid to defend Trump in rape defamation lawsuit by writer E. Jean Carroll

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E. Jean Carroll visits ‘Tell Me Everything’ with John Fugelsang the SiriusXM Studios on July 11, 2019 in New York.

Noam Galai | Getty Images

Several lawyers on Wednesday blasted the U.S. Department of Justice’s last-minute effort to act as President Donald Trump’s attorneys in a civil case where he is accused of defaming a writer who has said Trump raped her years ago.

“The DOJ was not meant to serve as the president’s personal in-house counsel, particularly on the taxpayer’s dime,” said Joseph Tacopina, a New York defense attorney.

“Trump calling an alleged victim of rape … a liar is not an act in his official capacity,” said Tacopina.

“Although ad hominem attacks on members of the regular public may be a regular occurrence in the Oval Office these days, Article II of the Constitution does not include within the functions of the presidency the role of Chief Mudslinger.”

The Justice Department on Tuesday, in a highly unusual move, filed a legal action seeking to transfer E. Jean Carroll’s defamation lawsuit against Trump, which is currently being handled in New York state court, to Manhattan federal court.

The Justice Department, whose move came two months before the U.S. presidential election, at the same time is seeking to replace Trump’s civil lawyer in the case as the president’s attorney.

The Justice Department said that it had certified that Trump “was acting within the scope of his office or employment at the time of the incident out of which the claim arose,” meaning when Trump said last year that Carroll was lying about having been raped by him in a Manhattan department store in the mid-1990s.

“The United States will file a motion to substitute itself for President Trump in this action for any claim for which the [Federal Tort Claims Act] provides the exclusive remedy,” the DOJ said in its filing in federal court.

Carroll’s lawyer, Roberta Kaplan, noted in a statement that the DOJ’s move came a month after a state court judge rejected Trump’s claim that “he is immune from a private lawsuit concerning defamatory statements he made about a sexual assault he committed in the 1990s.”

“As a result of that decision, Trump was soon going to be required to produce documents, provide a DNA sample, and sit for a deposition,” said Kaplan. She accused Trump of then enlisting the Justice Department to file its action and claim he was acting in his official capacity when he denied the rape claim.

“Even in today’s world, that argument is shocking,” Kaplan said.

Gerald Lefcourt, another top New York defense lawyer, called the DOJ’s action “pretty much unheard of.”

“Just because you’re president, if you hit a cop or rape a woman, that doesn’t mean that the Department of Justice defends you,” Lefcourt said. “The DOJ is not your lawyer.”

Lefcourt said the DOJ’s move is part of “a pattern of doing Trump’s legal work” by U.S. Attorney General William Barr.

Lefcourt pointed to the DOJ’s sudden and stunning reversal of its position in the criminal case of former national security advisor Michael Flynn, who has pleaded guilty to lying to the FBI about his conversations with a Russian diplomat.

After pushing for Flynn to be sentenced and fighting his efforts to get the case dismissed, the DOJ last spring sought to drop the prosecution. Trump had long been critical of the case against Flynn.

“Now [Barr’s] going to court to help Trump in his personal affairs, such as this defamation suit,” Lefcourt said, referring to the Carroll lawsuit.

“It makes them [the DOJ] look ridiculous.”

Lefcourt said he does not believe that the DOJ on its own accord sought to intervene in the case, 10 months after Carroll sued Trump.

“I’m sure that Trump asked Barr to ‘figure out a way to get this off my back,’ he said.

Neither the White House nor the DOJ immediately responded to CNBC when asked if Trump or the White House had asked the DOJ to intervene in Carroll’s lawsuit, or to research the question of whether it could intervene.

But a White House official told NBC News that that DOJ’s move was “consistent with prior precedent under the Federal Tort Claims Act.” The official said DOJ “certified that the defamation lawsuit should  properly be heard in federal court with the United States substituted as the defendant, because the President was acting within the scope of his office when he publicly responded to these false allegations.”

“The Department’s action adheres to the plain language and intent of the Statute which the courts have confirmed applies when elected officials, such as members of Congress, respond to press inquiries including with respect to personal matters,” the official said.

Lefcourt said that getting a federal judge to sign off on the removal of the case to Manhattan federal court, is “not automatic at all.”

“There’d be very few judges in [that federal district] that would look favorably on this, I would think,” he said.

“When you are trying to remove it from the state court, you’re saying that the state does not have the ability to provide proper justice and due justice,” Lefcourt said. 

He added that there is no reason to think that is the case in this lawsuit.

Carroll, in her own statement about the DOJ’s action, said, “President Trump knows that I told the truth when I said that he had sexually assaulted me in a dressing room at Bergdorf  Goodman.”

“He also knows that he was lying when he said that he had never met me before and that I ‘wasn’t his type,’ ” Carroll said. “[The DOJ’s] actions demonstrate that Trump will do everything possible, including using the full powers of the federal government, to block discovery from going forward in my case before the upcoming election to try to prevent a jury from ever deciding which one of us is lying.”

“But Trump underestimates me, and he also has underestimated the American people.”

The DOJ’s suprising move comes as Trump is trying to avoid the effects of legal subpoenas for his personal and business financial records. This month, a federal appeals court is set to hear what will be Trump’s second appeal seeking to block a subpoena to his accountants for his income tax returns and other records from the Manhattan District Attorney.

Also this month, a New York state court judge will hear arguments by Trump’s company and son, Eric Trump, seeking to block subpoenas from state Attorney General Letitia James as part of her civil investigation into whether the Trump Organization misstated the value of properties for tax and commercial purposes.

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