A federal court in New York City briefly heard from attorneys representing the U.S. Department of Justice (DOJ) and E. Jean Carroll during a Wednesday hearing over the government’s controversial efforts to insulate President Donald Trump from a defamation lawsuit.
Recall: the DOJ has attempted to commandeer Carroll’s defamation case against Trump in New York by stepping in as the defendant–claiming that the president was acting in his official capacity (and is thus immune to civil liability) when he denied raping Carroll during an interview in 2019.
Their efforts, so far, have not gone too well.
Wednesday’s minutes-long discussion was also something of a potential own-goal for the government’s efforts to keep the president clear of civil liability. By electing to short-circuit the previously-scheduled hearing, the DOJ intentionally robbed itself of most of its arguments in the entire case.
The hearing got off to an inauspicious–and somewhat delayed start–after DOJ attorney William K. Lane III was barred from entering the U.S. District Court for the Southern District of New York (SDNY) in lower Manhattan because he failed to abide by mandatory novel coronavirus (COVID-19) quarantine restrictions.
In a motion filed with the court, DOJ attorney Stephen R. Terrell requested a continuance in order to reschedule the hearing–half an hour before the proceedings were scheduled to begin.
“As grounds for this motion, the [DOJ] respectfully submits that this morning, when the attorney for the [DOJ] who was designated to present argument in support of the motion for substitution, he was denied access to the courthouse on the grounds that he had traveled from his place of residence in the Commonwealth of Virginia, which yesterday, apparently, was added to the jurisdictions from which the State of New York bans travel,” the DOJ argued.
That, perhaps unsurprisingly, wasn’t actually true:
There’s a press release dated Oct. 13 from Cuomo announcing Virginia had been added to New York’s travel advisory list: https://t.co/XNkjLwQAIv pic.twitter.com/baWaRTQSso
— Zoe Tillman (@ZoeTillman) October 21, 2020
U.S. District Judge Lewis A. Kaplan promptly denied the request:
Denied. The court will hear the government’s argument (a) in person if offered by an attorney who is permitted entry to the courthouse under existing rules and orders pertaining to COVID-19, or (b) by telephone from outside the courthouse if offered by any attorney not eligible to enter the courthouse. Alternatively, the court will take the motion on submission without oral argument.
The judge went on to note that–even if he wanted to–he was not personally able to change the COVID-19 restrictions in place by the governor of New York and urged the government to inform the court what option they wanted to take “as promptly as possible.”
Lane eventually appeared by calling into the teleconference line for the proceedings–which opened with the court noting that the DOJ asked for the hearing to be adjourned after their attorney was not allowed to enter the courthouse. Judge Kaplan made it clear that he wanted the record to show the DOJ’s request was denied.
When given a chance to speak and present, however, Lane chose to do nothing of the sort. Instead, he asked for the motions to be decided on the arguments in each side’s respective briefs–already submitted court papers–without oral argument whatsoever.
Carroll’s lead attorney Roberta Kaplan rose to note that her client was actually in the courtroom (unlike the DOJ) and that the DOJ’s suggestion was “disappointing” because their side was actually ready for the courtroom battle and had spent weeks preparing.
The court ultimately struck something of a balance by agreeing to decide the hearing on the motions but by excluding a large number of arguments offered by the DOJ in their latest reply brief from Monday because it wouldn’t be fair to Carroll otherwise. The judge also noted that this course of action would tamp down on the all-but certainty of a new flurry of motions and counter-motions being filed if the DOJ’s newest tranche of arguments were considered by the court.
Reaction to the DOJ’s conduct was of a piece.
Most viewed Lane’s behavior as a bout of pettiness premised on his being refused entry to the SDNY courthouse.
If they can’t do it in person, DOJ’s attorney William Kerwin Lane III doesn’t want to argue live at all.
Judge Kaplan: “The matter is taken under submission.”
No oral arguments.
Story ahead. https://t.co/72sqnv0nRp
— Adam Klasfeld (@KlasfeldReports) October 21, 2020
Others noted the apparent blunder that resulted from the DOJ declining to take part in oral arguments.
DOJ chose *not to argue the case* and forfeit the arguments in its reply brief rather than argue the case and get the benefit of its reply brief (for reference, the reply brief is ~15 pages, and the opening brief is 5 pages, with only 2 pages of argument). https://t.co/gw7qFkp3RD
— Leah Litman (@LeahLitman) October 21, 2020
The “argument” in its opening papers for removal is literally a string cite of cases, which is to say, not really much of an argument at all.
DOJ would rather *not have to verbally defend its position & take questions* than get the benefit of its briefing.
— Leah Litman (@LeahLitman) October 21, 2020
Judge Kaplan also addressed the DOJ’s decision for ditching the hearing in a corrected minute order released just after the scuttled proceedings were over.
“[The court] notes further that, contrary to the government’s suggestion, it appears that Virginia was added to the list of Restricted States over a week ago,” the corrected order reads–directly refuting the DOJ’s earlier excuse.
Roberta Kaplan provided the following statement to Law&Crime after the surprisingly short hearing on Wednesday:
Today, the court was scheduled to hear argument in a case against Donald Trump for slandering E. Jean Carroll after she revealed that he sexually assaulted her before taking office. The Justice Department has attempted to block this case at taxpayer expense by arguing that Trump was acting within the scope of his employment as President when he repeatedly defamed Carroll. But when given an opportunity by Judge Kaplan to present oral argument, DOJ declined to do so—even after the judge told them that this would result in the waiver of their newly raised arguments (which is to say, most of their case). This is unquestionably a new low for DOJ, which should at least appear in open court to answer for the outrageous positions that it has taken here. We remain confident that the Court will deny the Justice Department’s motion and we look forward to pursuing Ms. Carroll’s case in federal court.
Carroll is an author and Elle advice columnist who accused the 45th president of raping her sometime in late 1995 or early 1996. She initially made that accusation—one of over 20 sexual assault allegations against Trump—during the summer of 2019. Trump later denied the accusation in an interview with The Hill and Carroll subsequently sued for defamation in New York.
In August, Trump was given a deadline to produce his DNA as part of discovery in Carroll’s lawsuit. Less than a month later, the DOJ moved to intervene.
[image of Carroll via Astrid Stawiarz/Getty Images for Glamour; image of Trump via JIM WATSON/AFP/Getty Images]
