Potential courtroom showdown in defamation case fizzles

An expected courtroom showdown over the Justice Department’s move to have the federal government step in for President Donald in a defamation lawsuit was a bust on Wednesday, after a government lawyer was denied access to the courthouse because of coronavirus quarantine restrictions.

U.S. District Court Judge Lewis Kaplan was scheduled to hear arguments Wednesday afternoon in his Lower Manhattan courtroom over the motion to have the government replace as the defendant in a defamation suit that E. Jean Carroll, a New York writer, filed last November, after denied her claims that he raped her in a department store dressing room in the 1990s.

Just hours before the hearing, however, Justice Department lawyers filed a letter with the court asking for a postponement. The letter said the attorney assigned to present arguments for the government had been denied access to the courthouse after traveling from his home in Virginia, “which yesterday, apparently, was added to the jurisdictions from which the State of New York bans travel.”

The claim was perplexing, since Virginia was added to the New York state quarantine list on Oct. 13, more than a week ago. There is also no outright ban on interstate travel, but rather a 14-day quarantine requirement from travelers from states deemed to pose a high Covid-19 infection risk.

Kaplan, an appointee of President Bill Clinton, denied the Justice Department’s request for a postponement and convened the session about a half-hour late, with Carroll’s attorneys present in court and government lawyers piped in by phone.

The judge said the government lawyers were welcome to argue by phone, or have someone who had been cleared to enter the courthouse present the argument, or have the court resolve the motion without argument.

“The United States elects to submit on the briefs without argument from any side,” Justice Department lawyer William Lane told the judge, without explanation.

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A lawyer for Carroll, Roberta Kaplan, lamented the scuttling of the court session and sounded eager to present Carroll’s position.

“We’re obviously disappointed by this turn of events,” the attorney said. “E. Jean herself drove some distance to be before Your Honor today.”

Roberta Kaplan said one of her colleagues was standing by in the courtroom and ready to answer the judge’s questions, but none was forthcoming. She did ask whether Carroll’s side could present more arguments in writing in response to a government reply brief that arrived Monday, but Lane objected to further submissions.

“We would strongly prefer no additional briefing,” Lane said.

The judge then said he wouldn’t allow further filings, but would adhere to court rules calling for arguments first raised in a reply brief to be disregarded by the court.

Roberta Kaplan said in a statement after the proceeding, “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.”

The Justice Department drew widespread attention and some criticism last month for its move to take over ’s defense in the case on the theory that when he denied Carroll’s allegations last year, he was acting in his official capacity as president.

Any official connection to the alleged events involving and Carroll in a Bergdorf Goodman dressing room in 1995 or 1996 seems tenuous, but government lawyers pointed to other cases in which the government was substituted as the defendant in litigation over statements made in response to personal questions asked during official interviews.

Carroll’s attorneys filed a brief with the court earlier this month restating her detailed account of the alleged rape and vigorously disputing the claim that ’s responses had some official element to them.

“It is inconceivable that ’s employers — a.k.a., the American people — expect his job to include viciously defaming a woman he sexually assaulted,” the writer’s lawyers said.

The issue is more than one of whether or the taxpayer foot the bill for his defense in the suit. Legal experts say that if the government’s motion is granted, the case is essentially dead because the law does not permit libel suits against federal government officials acting in their official capacity.

For his part, as he closed the short hearing, Judge Kaplan sounded a bit miffed. “I’m sorry so many people were inconvenienced,” he said.

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