Merrick Garland is precisely the child you hated in legislation faculty
It’s probably no surprise that an attorney who achieved enough to be a lawful Supreme Court Justice and an actual attorney general would be an annoying gunner, but Merrick Garland decided yesterday to clear all doubts when his Justice Department decided that Adopting the previous administration’s position that presidents defame victims of sexual assault is strictly employment.
Right there in Article II: “The President is supposed to be Commander in Chief of the United States Army and Navy, saying that his alleged rape victims are ‘not my type’.” Okay, maybe the Constitution doesn’t really say that, but it’s in the “original public meaning” of the language.
One would have thought that the change in administration would lead to a change of position, especially since the DOJ initially filed the lawsuit in transparent bad faith. But Garland is like everyone’s least favorite law student here to offer “a comment rather than a question” to the Second Circuit.
Then-President Trump’s response to Ms. Carroll’s grave allegations of sexual assault included statements that challenged her credibility in crude and disrespectful terms. In this case, however, the issue is not whether Mr Trump’s response was appropriate. Nor is it about the veracity of Ms. Carroll’s allegations. The case instead deals with whether the Federal Tort Claims Act (FTCA) and the Westfall Act are applicable to the President and the scope of their application – issues that imply the institutional interests of the federal government. The district court’s resolution of these issues was wrong and the government respectfully requests the court to overturn the district court’s decision.
But that’s the answer to a question nobody really asked. No one with a touch of legal acumen thought that the FTCA is being defamed in the first place, let alone whether or not it falls under any of its exemptions. The whole thing was made by a boiler room owned by former FedSoc brothers in a conference room in the RFK building high up on Chick-fil-A. But with this argument the DOJ will go forward!
One could argue that Garland is only trying to protect the DOJ’s institutional credibility by refusing to turn it into a political pinball machine that races from one position to the next in each election. An admirable target for questioning the interpretation of ocean freight regulations, but total madness when it comes to imaginary legal ploys to shift the simple illicit liability of a president on to taxpayers. If that’s Garland’s mind, then he encourages every DOJ to step the line into crazy legal theories to handcuff future governments.
And that may be driving Garland, but I can’t get over the fact that he just can’t get out of his own head. He’s exactly the type who answers when hyposis talks for five minutes about Rawls’ veil of ignorance and the dangers of a slippery slope. “Well, if we let presidents make civil claims for defamation of attack victims, where does that end?”
There. It stops right there.
Maybe he’s crazy as a fox and knows that the Second Circle will laugh at that claim as much as Judge Kaplan does, and then he can quietly decline filing a certificate and drop it. The odds are certainly in his favor if that’s the plan, though it’s halfway clever when “just drop the calling” has a 100 percent chance of success and not a single non-cynical person would question it Decision.
We shall see if this is the strategy, but until then the United States of America must take the official position that its CEO can commit crimes with almost impunity during his tenure, presumably to “protect” the institution. of the Ministry of Justice.
“We can only defend the institution by refusing to acknowledge that the institution has fallen out of favor,” is a damned assumption.
Biden DOJ shields Trump from rape libel suit, so this is AF * cking bummer! [Wonkette]
Earlier: Justice Department steps in to save Trump from filing DNA in E. Jean Carroll’s libel suit
Joe Patrice is Senior Editor at Above the Law and co-moderator of Thinking Like A Lawyer. Feel free to email tips, questions, or comments. Follow him on Twitter for all the law, politics, and a healthy dose of college sports news. Joe is also a Managing Director at RPN Executive Search.