Dear Reader,
Any moment now, a federal jury in New York will return a verdict in a lawsuit brought by E. Jean Carroll, who alleged that former president Donald Trump had sexually assaulted and then defamed her. Expect to see a big number. (I know: not the boldest of calls.)
Behind this trial sits a nearly-forgotten but pivotal piece of history: if Attorney General Merrick Garland had stuck to his original determination about the case, Carroll would have gotten nothing. Only Garland’s late-breaking, politically-expedient turnabout rescued Carroll’s claim – and it might have saved DOJ’s ongoing criminal prosecution of Trump himself. It’s all connected, indeed.
Here’s the backstory. After Carroll first sued Trump in 2019, then-Attorney General Bill Barr decided that Trump’s public comments about Carroll – “totally lying,” “not my type,” and the rest – were (somehow) made within the scope of the then-President’s official duties. Therefore, the United States Department of Justice would take over Trump’s legal defense, and would promptly move for near-automatic dismissal based on the legal principle that a federal official cannot be sued for actions taken within the scope of the job.
Outrage followed. Dismayed at DOJ’s decision, Carroll tweeted (all-caps hers), “TRUMP HURLS BILL BARR AT ME.” Barr – Trump’s sycophantic AG who later turned on the bossman – scoffed at the widespread public revulsion: “The little tempest that is going on is largely because of the bizarre political environment in which we live.”
Are you appalled? Infuriated? Hold onto that for a moment.
In March 2021, Garland became attorney general under the new president, Joe Biden. Fresh beginnings, right? Well, Garland took a careful look at the Carroll lawsuit and, after somber deliberation, concluded… the exact same thing as Barr. Trump was (somehow) acting within his job as president, DOJ would step in and seek dismissal, and Carroll was out of luck. Carroll’s attorney lambasted Garland’s decision as “legally and morally wrong.” The new AG, in prototypically Garland-ian fashion, defended his decision with boilerplate pablum about “rule of law” and the “fundamental requirement[s] of democracy.”
Let’s take a moment here on this notion of civil immunity. As with so many Trump-era legal concepts, this one took root during the Nixon years – but, surprisingly, it had nothing to do with Watergate. Back in the late 1970s, Ernest Fitzgerald, a federal official who had been fired during the Nixon administration, sued Nixon and others for wrongful termination. After years of litigation, the Supreme Court in 1982 ruled for Nixon, dismissing the case because firing federal employees was part of the president’s job. Thus, the basic principle of civil immunity took hold: federal officials have to make difficult decisions all day long, and they shouldn’t have to worry that they’ll get sued if they do something that harms or offends somebody. It’s business, not personal.
If all this talk of presidential immunity feels especially familiar lately, it’s because Trump himself has raised a similar defense to DOJ Special Counsel Jack Smith’s indictment for 2020 election subversion. In that case, Trump has claimed that he can’t be prosecuted for actions he took as president. That argument has failed so far in the courts, and it likely will continue to fail – but if it somehow does succeed, DOJ’s prosecution of Trump is cooked.
So what was behind Garland’s original conclusion that Trump’s statements about Carroll fell within the presidential job description? I’ve certainly been critical of Garland – more to come, just ahead – but I don’t buy conspiracy theories that he’s some Republican plant, or a Federalist Society mole. In my view, the explanation is simpler, and less sensational. Garland recognized just how broadly DOJ traditionally has construed immunity principles and – perhaps wary of public perception that he might over-correct to remedy the political damage done by Barr – he decided to stay the course set by his predecessor. It’s trademark Garland: deliberative, straight, a bit timid.
And this is crucial: at this point in 2021, DOJ had not yet indicted Trump, and Garland was slow-walking the January 6 investigation by focusing only on the low-hanging fruit – the riff-raff in face paint and catalog-purchased tactical gear who stormed the Capitol but had no connection to Trump himself. At the time, Garland had no reason to consider the impact of a Carroll decision on a Trump indictment; DOJ hadn’t yet charged Trump and, I maintain, Garland had no intention to pull the trigger.
But nearly two years later, the world had changed. Garland, forced to action by the compelling January 6 Committee hearings and mounting public pressure, appointed Jack Smith as special counsel in November 2022. A few months later, Garland unilaterally (for some reason) decided to take another look at the Carroll case. And, Garland explained, he’d had a change of heart. DOJ informed the parties that it now believed that, actually, no, Trump was not doing his presidential duty when he publicly denigrated his accuser. Carroll’s attorneys publicly rejoiced. Trump fumed.
The Justice Department’s explanation for its turnabout, dear friends, is abject bullshit. Sure, Garland by 2023 had more evidence – Trump continued to publicly attack his accuser – but he did not have different evidence; Trump’s new statements about Carroll were substantively identical to the earlier statements, the same old trash about how she’s a liar and unstable and unattractive. Nothing about Trump’s later commentary moved his conduct from within the perimeter of the presidential job duties (as Garland originally found) to outside those boundaries.
So what’s up? I see two reasons behind Garland’s about-face. First, and more obviously, he just couldn’t take the heat. He tried to stick to principle initially, but the fury from Carroll, her lawyers, her supporters, and the public was just too much to bear. So Garland found some fig leaf and covered up.
But there’s also a higher-stakes, multi-dimensional legal strategy at play here. Garland obviously knew by early 2023 that Trump would raise an immunity defense in Smith’s criminal case; heck, I predicted it in my book last year, and I’m no rocket scientist. So how would it play – in court and beyond – if Garland was already on record saying that Trump was acting within the presidency when he verbally attacked Carroll? If it’s part of the president’s job to call a rape accuser an ugly liar, then what’s outside the lines? And wouldn’t it also be well within those boundaries (and probably closer to core duties) for the president to talk to other officials about an election, even with ill intent? Garland realized he’d drawn the line around the president’s official duties dangerously broadly in the Carroll lawsuit, and he backtracked before that same construction could be used against his prosecutors in Smith’s criminal case.
Merrick Garland is a windsock. He flows with prevailing political currents and then lurches another direction as atmospheric conditions change. This is both a criticism (of his lack of fortitude) and a compliment of sorts (to his tactical, shall we say, adaptability). When Garland realized his initial determination on Carroll could hurt DOJ’s criminal indictment of Trump, he adopted a flimsy pretext and awkwardly slammed it into reverse. In the process, the AG may have saved both cases.
Stay Informed,
Elie
