'Embarrassing defense': Legal expert says DOJ should ditch Trump in defamation trial

E. Jean Carroll's latest move to seek punishment for Donald Trump for defamation puts new pressure on attorney general Merrick Garland to stop defending the former president, a former federal prosecutor wrote Tuesday.

Garland doubled down on his predecessor William Barr's decision to represent Trump in the defamation case filed by Carroll, who prevailed earlier this month when a jury awarded her $5 million in damages in a separate case.

But her move to go after the ex-president for repeating his defamatory denials should send Garland scrambling, wrote Daily Beast columnist Shan Wu.

"A path out of this mess was outlined for Garland in the Carroll legal team’s letter to the judge requesting to amend the complaint to use Trump’s CNN town hall remarks as a further basis for damages against the former president," wrote Wu, a former federal prosecutor.

"In the letter, Carroll’s lead attorney, Robbie Kaplan, referenced DOJ's request that had the judge first rule on whether Carroll will be allowed to amend her complaint, in which case the DOJ would want 60 days to consider such evidence as Trump’s deposition used in Carroll II (as well as other evidence) before they submitted further legal briefings about whether Trump would be immune from the suit."

The DOJ request shows it was aware Trump's deposition in the separate defamation trial – in which he defended his "Access Hollywood" "grab 'em by the p--y" remarks – placed his insults outside the scope of his duties as president, so government lawyers should not be obligated to defend him.

"The deposition shows that Trump appeared to act purely in his personal capacity in his derision of Carroll," Wu wrote. "Specifically, the deposition notes that at the time of the statements 'neither Trump nor (to his knowledge) any of his White House aides had conducted any research or investigation' into Carroll, and Trump also failed to 'identify any White House personnel as involved in investigating, preparing, strategizing, or preparing his June 2019 statements, or any official meetings focused on Carroll’s allegations.'"

That shows he was speaking only for himself, and not his office, and Wu argued that was enough for Garland to cut ties with the case.

"Garland needs to consider and acknowledge this and get the DOJ out of the business of defending Trump," he wrote. "Stopping his embarrassing defense of Trump’s insulting of a sexual assault survivor would go a long way toward restoring the DOJ’s tarnished image."