On Sept. 8, the U.S. Department of Justice moved to replace President Donald Trump’s private legal team with government lawyers in order to defend him against a defamation lawsuit by the author E. Jean Carroll, who has accused him of raping her in the 1990s.
In a highly unusual move, the Justice Department argues that Trump was acting in his official capacity as president when he denied ever knowing Ms. Carroll, and as such, government attorneys should assume Trump’s defense.
Should the Justice Department be defending a president accused of lying about a rape that is alleged to have occurred before he was president?
At his confirmation hearings, Attorney General William Barr pledged to act independently. Yet Barr has consistently advocated that the attorney general should vigorously defend the president “by advancing all colorable arguments that can mustered in support.” How can the U.S. attorney general act independently while also serving as the president’s sword and shield?
Our nation’s founders originally intended for the attorney general’s office to be housed within the judicial branch — not the executive branch. It wasn’t until 1870 that the position moved to the executive branch and acquired its own department. An unfortunate consequence of our current arrangement is that presidents strangely oversee the office that oversees whether presidential actions are legal. Perhaps this is why Trump views himself (rather than the attorney general) as “the chief law enforcement officer of the country.”
Making the attorney general an executive officer subordinate to the president incentivizes attorneys general to act in pursuit of the president’s political agenda, rather than solely in accordance with the rule of law. This can be problematic, as I have found that abuse of power is comparatively more common in countries where the president and the attorney general are political allies. Just within the last year, we in the U.S. have been awash with many such examples.
This June, for instance, Barr chose to prioritize the president’s photo-op at a church rather than the civil liberties of protesters who were cleared from the president’s path by security forces using rubber bullets and a type of tear gas.
In May, Barr’s Justice Department moved to drop all charges against former National Security Adviser Michael Flynn, who previously had plead guilty to lying to the FBI. At the time, Trump tweeted that it “was a BIG day for Justice.” This prompted more than 2,000 former Justice Department officials — who served in both Republican and Democratic administrations — to sign an open letter urging Barr to resign.
In March, a Republican-appointed judge criticized Barr’s handling of the Russia investigation, which seemingly echoed Barr’s critics who argue that his public statements mischaracterized Mueller’s findings in a way that favored Trump.
Last November, Roger Stone, a Trump confidant, was found guilty of lying to Congress and witness tampering. Career prosecutors handling the case recommended between seven and nine years in federal prison. After Trump tweeted that he “[c]annot allow this miscarriage of justice,” Barr overrode the sentencing recommendations, for which he was showered with Trump’s praise. Once again, a bipartisan group of more 2,000 former Justice Department officials signed an open letter urging Barr to resign.
Now that Barr is leveraging government lawyers to defend the president in a defamation lawsuit against the private citizen, taxpayers are effectively bankrolling Trump’s defense. Furthermore, taxpayers will be on the hook for any damages that could be awarded.
It’s no secret that Trump loves to litigate — I just wish I didn’t have to pay for it.
Joshua Holzer is an assistant professor of political science at Westminster College in Fulton and a resident of Columbia.