After supporting former President Donald Trump’s effort to dismiss a lawsuit filed by a woman accusing him of rape, Joe Biden’s Department of Justice threw another assist to his predecessor’s administration.
In a motion to dismiss filed on Tuesday, the Justice Department backed former Secretary of State Mike Pompeo’s bid to boot a lawsuit by the former U.S. Ambassador to the European Union who became a key impeachment witness during Trump’s Ukraine scandal in 2019.
Gordon Sondland alleged in a complaint filed in May that Pompeo’s State Department promised to underwrite his legal fees in connection with Trump’s first impeachment proceedings—until Sondland actually started testifying in a public hearing.
The former U.S. Ambassador to the European Union, Sondland did not have a diplomatic background when Trump nominated him, but the wealthy hotelier did donate $1 million to the president’s inaugural committee. He was widely considered a Trump loyalist, and his closed door testimony reportedly toed the administration’s line.
Then, in an open hearing of Congress in front of the international press, Sondland bluntly proclaimed on the question of whether Trump engaged in a “quid pro quo”: “The answer is yes.”
According to Sondland’s lawsuit, the legal fee arrangement he entered into with the State Department dried up after that. The ex-ambassador sued in a lawsuit previously docketed as Sondland v. Pompeo.
On Monday, the Justice Department moved to take over and dismiss the lawsuit, giving the case the new name Sondland v. United States and arguing that Pompeo was “acting under the scope of his employment” when the alleged agreement took place.
“[Pompeo’s] purported oral promises to pay fees for plaintiff’s private counsel do not give rise to tort liability because Congress excluded fraud and misrepresentation from the limited waiver of sovereign immunity in the Federal Tort Claims Act and there is no other applicable waiver of sovereign immunity,” Assistant U.S. Attorney Jane M. Lyons wrote in a two-page motion to dismiss. “Even if misconstrued as alleging negligence, the claim is barred by the economic loss rule.”
The argument was similar to the one Attorney General Merrick Garland’s Justice Department deployed to try to dismiss columnist E. Jean Carroll’s lawsuit, which accused Trump of defaming her when denying that he raped her.
When former Attorney General Bill Barr still led the Justice Department last October, a federal judge rejected the government’s claim that Trump had been acting in his official capacity as president of the United States when he told reporters: “She’s not my type,” referring to Carroll.
Describing the Justice Department’s position as offensive, Carroll’s lawyer Robbie Kaplan said: “Calling a woman you sexually assaulted a ‘liar,’ a ‘slut,’ or ‘not my type’ — as Donald Trump did here — is NOT the official act of an American president.”
Many legal experts agreed. CNN’s senior legal analyst Elie Honig told Law&Crime that the government’s interest in preserving Westfall immunity, as it is known, is understandable, but he called it “absurd” as applied to Carroll’s situation.
“I benefited from that when I was a federal prosecutor,” Honig said in an interview in June. “I understand it, but I think this goes too far. And so I don’t think you protect the legal principle by arguing it to an absurd, an indefensible degree.”
The Justice Department deploys a similar argument here about Pompeo’s official duties.
“In this case, the Westfall Certification by the Acting Chief of the Civil Division of the United States Attorney’s Office for the District of Columbia states that former Secretary Pompeo was acting within the scope of his employment as an employee of the United States at the time of the incidents alleged in the complaint,” a memorandum supporting the motion to dismiss states.
Sondland’s attorney Mark Adam Barondess did not immediately respond to an email requesting comment.
(Photo by Mark Wilson/Getty Images)
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