They say politics makes for strange bedfellows — and they’re right. Then, too, so does litigation on occasion. This is one of those occasions.
While the Department of Justice does battle with former President Donald Trump on multiple fronts (see, e.g., Florida classified documents case, DC 2020 election case), it is actually stepping in to defend him on another front. Yes, you read that right.
You see, protesters who were pushed out of Lafayette Square by law enforcement in June 2020 while demonstrating over the death of George Floyd took issue with that, and several filed civil suits against the government and the former president, claiming their civil rights had been violated.
But, noting that Trump was acting within the scope of his federal office at the time he allegedly directed law enforcement to clear the park, the DOJ is now seeking to substitute itself as the proper defendant in the litigation.
In court filings on Monday, the Biden-era Justice Department certified that Trump was acting in the scope of his employment as president and filed a notice substituting itself as the defendant.
“On the basis of the information now available with respect to the claims set forth therein, I find that Donald J. Trump was acting within the scope of federal office or employment at the time of the incident out of which the plaintiffs’ claims arise,” James Touhey, the Justice Department’s director of its civil torts branch, wrote in the notice.
If the court grants the substitution, that will mean one less legal headache on Trump’s plate — he will not face the risk of being found personally liable. And while the plaintiffs may object to the substitution, there is precedent for it:
The protesters who brought the lawsuit can attempt to object and keep Trump on the hook. The judge overruled their objection, however, when the Justice Department previously substituted itself for former Attorney General Bill Barr and other defendants in the case.
The DOJ also filed motions to dismiss the claims at the same time as the motion to substitute. It is unclear how quickly the court will rule on the motions. However, the move offers a fascinating glimpse into federal practice and jurisprudence.
Those who’ve grown skeptical of the DOJ may wonder what the angle is here. Are they just making the appropriate procedural move under the circumstances? Or is there some ulterior motive? I don’t have the answer to that. I do know it stands in interesting contrast with their prior moves in relation to the E. Jean Carroll litigation.
The scope-of-employment issue was previously a mainstay in advice columnist E. Jean Carroll’s litigation against the former president, which stemmed from allegations that he sexually assaulted her in the mid-1990s.
The Justice Department in both the Trump and Biden administrations sought to substitute itself for Trump in one of Carroll’s lawsuits, tying up the case for months, only for the department to eventually reverse its position and leave the former president on the hook.
Now, certainly, there are distinctions between the nature of the allegations. But it is a bit curious. Still, if the substitution in this instance spares Trump having to pay damages to the protesters, I suspect he won’t mind.
