Welcome to Lisa Monaco’s DOJ, E Jean Carroll Lawsuit Edition

During Lisa Monaco’s confirmation hearing, several people joked about how few questions she was getting. Because Vanita Gupta had been targeted by Republicans, Monaco was left for broad swaths of the hearing, a spectator to that effort.

There were some good exchanges. In addition to complaining about DOJ’s refusal to respond to questions from Democratic members of Congress, Sheldon Whitehouse asked about OLC, to which Monaco provided an anodyne answer that was enough for Whitehouse, who was going to vote for Monaco one way or another. Josh Hawley asked some legitimately good questions, including about end-to-end encryption. To those questions, Monaco hewed a middle ground and an adherence to the laws on the books. John Cornyn asked the same question Republicans harped on with Merrick Garland, whether she would let John Durham finish his work, to which she responded that her job is to make sure he has the resources to do so, which (while more nuanced that it sounded) shut down that line of questioning.

It was a testament to how shallowly Republican staffers interpreted Lisa Monaco’s long career that Chuck Grassley asked Monaco whether she had involvement in Crossfire Hurricane — the answer was obviously no, given her White House role at the time. But Grassley didn’t ask whether her position at the nexus of Mike Flynn’s efforts to obtain information from the Obama White House in advance of making calls with Sergey Kislyak that Flynn lied to hide would affect her view of the Russian investigation. Perhaps only Susan Rice was more personally betrayed by Mike Flynn’s outreach to Russia, and yet Republicans seemed to not even realize that Flynn and KT McFarland sent Tom Bossert to query Monaco in advance of Flynn’s covert call with Russia, making her the Obama person most directly victimized by Flynn’s underhandedness.

That blithe ignorance of how Monaco’s personal history might affect her tenure extended beyond the Senate Judiciary Committee. For example, while every Assange supporter has targeted Biden and Garland for their pleas to drop the Assange prosecution, none have thought about the fact that Monaco was in charge of the response to the 2016 Russian interference campaign that led even WikiLeaks sympathizers in the Obama Administration to completely reconsider Assange’s game and his longterm relationship with Russia (then again, Assange supporters, almost to a one, have convinced themselves to believe bullshit propaganda about that decision being made under Trump).

Most people have failed to ask these questions about Monaco’s career experiences, even though as Deputy Attorney General, Monaco runs DOJ on a day-to-day basis and makes a lot of these decisions and serves as a key advisor to Garland where she doesn’t.

As a result of the very surface approach to Monaco’s career, there were a whole slew of questions in her confirmation hearing that should have been asked (and should be asked before Monaco’s close associate Matt Olsen is confirmed as National Security Division head), but were not. When Lisa Monaco was Robert Mueller’s top advisor in 2006, for example, what role did she play legalizing the phone dragnet aspiring to collect the phone records of all Americans under FISA’s Section 215? Given her past failures to fulfill promises of transparency, specifically as it relates to FISA, what can she do to ensure she will deliver on such transparency as Deputy Attorney General? What was her role in the execution of Anwar al-Awlaki, and what does that say about her willingness to support unfettered executive authority? With the value of hindsight, does Monaco believe that she was suckered into continuing John Brennan’s permissive approach to drone strikes as White House Homeland Security Advisor, and if so what would she do to give herself the leverage to actually change bad policies baked in by her predecessors?

Don’t get me wrong: Monaco has almost unparalleled qualifications to be Deputy Attorney General, she brings a lot of great qualities to the job, and I’m sure she’s a lovely person. But there was almost no consideration about what affect her long tenure at DOJ and in National Security roles would have on her view towards Presidential authority and DOJ institutional precedent before she was confirmed.

Indeed, in perhaps the question that got closest to asking how she would treat initiatives from career DOJ officials already in place, Monaco explained to Amy Klobuchar that she viewed her job as to empower the people at DOJ she believed operated from an inherently unpartisan stance.

Klobuchar: After the last four years where civil servants withstood political interference, what do you see your role is as restoring the trust in the Department of Justice?

Monaco: Well Senator, as I said in my opening remarks, I think that the career men and women of the Justice Department are its backbone. They’re the people that enforce the law independently, faithfully, fairly, impartially, without any consideration of improper motive. I think they simply want to do their job. They want to do their job with the resources and the tools to keep the American people safe, to prosecute violent crime, to administer justice with compassion, and with humility, as Judge Garland talked about before this committee. And they want to see equal justice under law, and they want to do the work that this Committee has done on a bipartisan basis to administer criminal justice reform. And so I think my role is to ensure that they’ve got the tools and resources to do their job and to protect them from improper influence, any partisan motive, because I think they just want to do their job.

This is the belief system that leads Monaco to respond to a question about career DOJ prosecutor John Durham’s clearly politicized investigation by saying that her job is to make sure he has the resources he wants to continue that investigation.

In her role at DOJ, Monaco has overseen some key wins: with the announcement yesterday that FBI had seized much of the ransomware payment that Colonial pipelines had paid Dark Side hackers, with her quiet presence on the public line listening as Paul Hodgkins made the first pure guilty plea of the January 6 investigation, with the decision — on her first full day in office — to let SDNY resume its investigation into Rudy Giuliani’s foreign influence peddling.

But also under her leadership, DOJ has delayed notice to NYT about an effort to get their Internet records in a clearly politicized investigation. DOJ has moved to hide the contents of a Bill Barr memo that clearly abused his authority and the role of OLC (and with that decision, protected career employees who were making similarly dubious claims when Monaco ran the National Security Division). DOJ has defended a lot of legal stances that were obviously political on their face, most recently and egregiously by sustaining DOJ support to give Trump immunity from suit in his attack on alleged rape survivor, E. Jean Carroll. That is, as she did before with Cheney’s Stellar Wind and Brennan’s drone program, Monaco seems to have chosen not to make a clean break from the horrible policies of her predecessors, choosing instead to ensure the continuity of the institution.

Again, Lisa Monaco oozes intelligence and competence; she’s undeniably qualified to be where she’s at. But she also got where she’s at by cleaning up the messes left by Stellar Wind, the torture program, and John Brennan’s drone program by improving those shitty policies without demanding any accountability for the abuse of DOJ and presidential authority they entailed. Plus, as a career DOJ official, she’s going to defend professionals who did stupid things on the orders of a deeply politicized boss.

Particularly in the wake of the decision to defend Trump against Carroll’s suit, people are wondering how Merrick Garland could make such a horrible decision. My suspicion is they would be better asking what Lisa Monaco’s role was in the decision.

56 replies
  1. GKJames says:

    It suggests the double-edged sword that is “long tenure at DOJ”. Loyalty to the institution and protection of colleagues — surely, no one expects Monaco to push for the line prosecutors misleading Sullivan and Berman Jackson to have their tickets pulled — come to supersede the broader public interest. It would be tolerable, I suppose, were it not for the cowardly hiding behind a wall of secrecy.

  2. klynn says:


    Trying to get up to speed on all things Trump and J Carroll. I went researching and need some help clarifying a few things.

    So this was a separate suit from the rape suit where court determined Trump had to turn over DNA? Did DT turn to DOJ for protection from both law suits?

    Sorry, all this happened at a time where I was extremely distracted from news.

    The reason I ask is, as two cases that are related, how can libel be determined prior to a rape case? Which muddies DOJ’s / Monaco’s stance.

    • Leu2500 says:


      A court ordered Trump to provide a blood sample. Shortly before the deadline, Barr stepped in & had the DoJ take over Trump’s defense.

      • klynn says:

        Not trying to distract from the Monaco points made here EW – they are excellent. I’m trying to understand how bad this DOJ decision really is.

        So is that “Yes,” as in this DOJ decision is related to both the rape case and the libel case or just the libel? I understood it to be irt the libel case, not both.

        I still do not understand how the decision by DOJ to protect from libel is able to be determined when the rape case remains outstanding? And if it is DOJ just protecting for libel, doesn’t that decision look even worse since it was irt the rape law suit? Monaco’s influence could potentially be far worse than just protecting a gov employee from libel.

        Again IANAL.

        Ugh, I need to make a timeline on DT-Carroll events to clarify this DOJ move.

        • Bobby Gladd says:

          I think it’s “only” about the libel lawsuit.

          “[Justice] department lawyers said that when Mr. Trump had denied raping Ms. Carroll, through the White House press office or in statements to reporters in the Oval Office and on the White House lawn, he was acting within the scope of his office.

          “Elected public officials can — and often must — address allegations regarding personal wrongdoing that inspire doubt about their suitability for office,” the department lawyers argued, adding, “Officials do not step outside the bounds of their office simply because they are addressing questions regarding allegations about their personal lives.”

          Sitting POTUS cannot commit libel?

        • Yargelsnogger says:

          I don’t think there is a rape case. My recollection of it was that the statute of limitations was long passed on that. However, Trump, in responding to the accusations of rape put himself in a situation where he *was* able to be sued for libel.

          I am also not a lawyer (IAANAL?), so maybe someone here can correct me if I got this wrong, but this is my understanding of the situation. Trump will never see jail time for the sexual assault, but might have to payout for the libel damages (and as a result of that trial have the facts of the rape case aired out, even if he won’t be punished for it directly.)

  3. SomeGuyInMaine says:

    I think the mode of cleaning up big messes quietly, seems right in line with a lot about the current administration. The mantra seems to be: make don’t make headlines, make stuff work.

    Dropping or not dropping the Carrol case is a bit of a headline either way, but continuing on for now may in the long run be least disruptive to what the current DOJ is trying to do.

    Curious to see how vigorous the defense of the Carroll suit is from here on out.

    • ApacheTrout says:

      I’d assume that the defense will be vigorous. Why waste time and labor and your reputation with a judge if you’re not going to put forth an honest effort?

  4. Rapier says:

    Nobody rises in an institution of any sort, corporate, government, NGO, unless they defend, without thought, that institutions members and actions from any and every question that comes from outside that institution. This is rule one. Break it and your life as a careerist in any institution is essentially over. If anyone can point to an example of a whistleblower who went on to an equal or higher position in any institution I’d love to hear it.

    Our hosts willingness to debunk any and every party line is why she goes it alone I would say. For instance how did things go with her last attachment with The Intercept? Those of us who don’t or won’t be organization men mostly don’t enter institutions or are weeded out very quickly or otherwise just leave. They are not cut out to be in the tribe of Professionals.

    • John B. says:

      Excellent point Rapier, and about the only way I can understand some of the decisions coming out of the Garland DOJ.

    • Savage Librarian says:

      “If anyone can point to an example of a whistleblower who went on to an equal or higher position in any institution I’d love to hear it.”

      Well, just as a reminder, I have to say that I was successful in that regard. It was not without many costs though, financially, emotionally, and physically.

      And although I may not have succeeded in having one particular judge agree that I qualified as a whistleblower, conceptually many people (including me, after reading relevant statutes) believed that I met the qualifications.

      After losing one case in federal court, I was still offered a settlement agreement. Some people tell me that’s unusual. But I have no way of knowing whether or not that is true.

      I also was successful in having the civil rights division of the DOE make local administrators change a policy and provide systemwide training on what constitutes harassment and discrimination.

      All in all, it was an unpleasant experience for everyone involved. And it certainly did nothing to get people to pay attention to the threat of white supremacists, as far as I can tell. So, here we are, on a much larger scale.

      For me it was never about money or position. It was always about defending and supporting democracy. The question now is, how do we convince people that democracy and the rule of law are far superior to autocracy?

      People can work both inside and outside the system. The key word being “work.”

    • PieIsDamnGood says:

      I don’t understand why people like Monaco can’t see all the institutional power and reputation they preserve at great cost is going to be abused by the next Barr. It’s a painfully obvious cycle and I’m not even that old.

  5. yogarhythms says:

    LM’s decision to stay the DOJ course by standing back and standing by sure quacks like a duck. Yes it is arguable former’s words were FTCA protected. Judge Lewis Kaplan decided they were not. DJT has personally and presidentially created “Thousands” of legal actions seeking remedial relief from our judicial branch of government against all of his chosen targets. Lisa’s tortious appellate role is a frightening reactionary reach. I wish as a father I could see defaming a rape victim by serial rapist as within the scope of president’s employment but I’m sorry. I agree with LK’s decision.

  6. dwfreeman says:

    Meet the new boss, same as the old boss. Everything is the same because nobody wants to rock the institutional boat. What’s the point of ideological change in administration other than a lying claim in pretense of a bullshit belief in equal justice under the law? Not really what DOJ does or is all about in daily practice, is it? Just got fooled again.

    Saving a corporate entity from a willing ransom payment from hackers in Russia means nothing except changing some bitcoin exchange rate for a few days while enjoying a cyberspace sugar high. I mean that was the whole point of the useless Mueller indictment of Russian election hackers, to prove our discovery technology is greater than their disinformation reach, except it’s not a deterrent, is it?

    No, because that requires moral, courageous law enforcement commitment, which DOJ fundamentally lacks and only pretends to care about.

  7. Marinela says:

    As I understand this decision, it is about defending federal employees while on job. The defamation was triggered after Carol spoke about the rape while Trump was president.
    So current DOJ will end up trying to throw out the case based on Trump being a Federal employee?
    Trump is not President anymore, why is the current DOJ still on the hook?

    Also, why wasn’t Clinton defended by DOJ?

    • P J Evans says:

      And he wasn’t president when he did it, so yeah, it really shouldn’t be DOJ’s job here..

      • Marinela says:

        I think the distinction here is about JC’s defamation suit happened while Trump was President.
        The rape allegation probably reached the statute of limitation, but not sure.

        He responded to the defamation while President, but now that he is not President, he is more than capable to defend himself. The defamation is an artifact of a rape allegation that is a personal matter, if no rape allegation in the first place, there will be no defamation discussion.

        On the other hand, if current DOJ is defending Trump, would be interesting to envision a meeting between Trump and the defense DOJ layer to strategize about his defense. Heck, throw Lisa Monaco in the mix at the meeting.

        Anyway, someone can go crazy on this stuff.

        • timbo says:

          Yeah, I’m still not clear on what DOJ’s justification is to remain on this case. It’s now a civil lawsuit between private individuals, correct? Or are they arguing that Trump was always going to be President in the past and therefore they always have to take his side in court into the future? Seriously, this seems like incredibly specious stuff from a bizarro law world. And, frankly, if they are treating Trump as a “government employee” then maybe they also might want to apply the requirements within the federal employee handbook when it comes to all sorts of obvious violations of said handbook by El Employee Numero Primo?

          • Marinela says:

            Good points on all.
            Personally, don’t understand this circular logic.
            If it was wrong for Barr DOJ to do it, it is wrong now.

            The next Trump DOJ will have no problem with trashing norms again and again, obstructions, polarization, …

            So we win, we appoint a moderate for DOJ, walk on egg shells on all issues, no appetite for exposing the wrongs. They win, they trash everything.

            Feels like playing catch up all the time. In the end the institution they are supposedly protecting is eroding, trending in the wrong direction.

            If they are so concerned about optics, what about catering to the people that voted Trump out? They see no substantive improvements.

  8. The Old Redneck says:

    These are actually complicated decisions to make. There are a lot of competing considerations.
    If you really want continuity and professionalism in the DOJ, then you might legitimately be concerned about abandoning a legal position you argued for months or years. That’s true even if it’s a position you wouldn’t have taken if you were the one who made the call initially.
    I’m probably among the less cynical on this. But I do think it’s possible that Monaco (and many in the new regime) is concerned about restoring stability, and dispelling the idea that DOJ just blows in the political wind.

    • emptywheel says:

      I agree. These are complicated decisions.
      This one is pretty bad, but I’m not surprised by it. What I am surprised by is the number of people who are surprised that Lisa Monaco is an institutionalist.

      • OmAli says:

        I’m thinking that right now, the institutions would be fine – would be much strengthened, actually – if Monaco and Garland started making decisions based on the actions of the former occupant of the Office of the President and the not the Office itself. Same with the former AG and his slimly assistant.

        • Marinela says:

          Hiding behind institutionalist label doesn’t protect the institution.
          It makes it weak and untrusty.

    • earlofhuntingdon says:

      Institutionalism didn’t stop Bill Barr: he absconded with it for malevolent reasons. Surely, Garland and Monaco would do more to support their beloved DoJ by condemning the unprecedented abuses of the prior administration. Otherwise, we’re in a loop, where the current tenant has to keep and admire everything done to the place by every predecessor. As the Dreyfusards complained, that way lies endless injustice and abuse.

  9. Jenny says:

    E. Jean Carroll’s attorney, Roberta Kaplan, responds to DOJ via twitter.

    The DOJ’s position is not only legally wrong, it is morally wrong since it would give federal officials free license to cover up private sexual misconduct by publicly brutalizing any woman who has the courage to come forward.
    11:32 PM · Jun 7, 2021 https://twitter.com/kaplanrobbie/status/1402106253866844166
    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. We remain confident that Judge Kaplan’s decision will be affirmed by the Second Circuit.
    11:34 PM · Jun 7, 2021 https://twitter.com/kaplanrobbie/status/1402106747691704321

    Remember 26 women have accused Trump of sexual misconduct. E. Jean Carroll is just one of them.

    So now tax dollars being used for Trump’s defense.

    • bmaz says:

      Note that Robbie Kaplan was the one who prevailed on similar “we have to protect the institutions” BS argument as to DOMA a long time ago. A thing Biden was, at least then, very involved in.

  10. OmAli says:

    Kaplan prevailed over the BS institutional protections claim? And Biden was on the institutional protection side?

    I’m sorry! I need to keep up!

    • earlofhuntingdon says:

      You’ve got the conflation recipe down pat, now try adding facts and a sprinkling of nuance. But I agree that Garland’s DoJ could distinguish the unprecedented malevolence and criminality of Trump and his abusively managed DoJ from other iterations, and support the institutional themes that administration shat on by disowning Trumpist abuses. Who will make them want to do that, and why do they need encouragement instead of being reined in?

      • timbo says:

        This is what happens with the Congress is adrift basically. It’s power has waned and the executive departments are becoming more and more independent from oversight…

  11. Leoghann says:

    I can understand Barr’s public argument in favor of stepping in as Trump’s counsel in his defamation suit. Carroll made a public accusation while Trump was in office, the time of the claimed offense notwithstanding. I don’t agree with it, because the suit was filed before Carroll’s suit regarding the rape was decided (and it has not been). I do not see how the defamation suit can possibly proceed until the disposition of Carroll’s case.

    In legal ethics, there is considerable importance given to the principle of avoiding, not just impropriety, but the appearance of impropriety. That used to be an important consideration in politics as well–used to be. Of course Republicans and right-wing pundits are going to be outraged and make terrible accusations about anything any part of a Democratic administration does, just as they will turn a blind eye to nearly anything their fellow Republicans do. Democrats are the same way, if perhaps not quite so egregious. But all those people in the middle will make their voting and support decisions according to what they see, more than what they hear. Biden and his cabinet no doubt know that the other side will criticize no matter what. They also know that any justified accusations against them will hurt them with the general public. I believe they are taking pains to avoid any perception of partisan influence over general policies, and this issue is one of them.

    • earlofhuntingdon says:

      That Trump was president is not legally related to Carroll’s allegations. Those are about conduct that took place years earlier and have no connection to Trump’s conduct as or while president. The DoJ’s arguments are even less tenable now that Trump is out of office. The DoJ should not be involved in this suit or be spending taxpayer’s money on it.

      • bmaz says:

        The alleged rape took place long before Trump’s presidency, but the statute had run on that. The current case involves speech by Trump while he “was” President. Thus the Westfall/FTCA act does come into play. There is nothing mandating this application by Garland though, though DOJ is acting as if there were. It is outrageous that they still are with Trump well after out of office. Here is a piece quoting E.Jean Carroll’s lawyer, Robbie Kaplan. And Robbie knows a thing or two, as she confronted this issue as to DOMA.

          • bmaz says:

            Am aware of what Mark and Brad have said, and as to Brad, written. I personally asked Brad whether he had advised people interviewing him that the DOJ decision was NOT mandatory. He responded that, yes, he did.

            There are legitimate concerns in light of Westfall/FTCA, but it is still discretionary, and far better discretion should have been utilized on this matter.

        • earlofhuntingdon says:

          As you say, Westfall/FTCA may be implicated, but its application depends on the facts. It’s application is not mandatory – unless you’re Donald Trump’s Roy Cohn.

          Barr’s DoJ chose to argue – and their arguments have been accepted by Garland’s, at least for now – that it must defend a president, regardless of the facts and circumstances, regarding any matter about which he defends himself while president. Their logic seems to be that whenever the person occupying the presidency defends himself, he is defending the office of the president, and that requires DoJ to defend him. In the Carroll case, that would result in the dismissal of her claim, presumably the desired outcome for Barr and Trump.

          That logic would allow a president to demand that DoJ defend him against any civil claim or process, or criminal prosecution, all unrelated to his conduct as president, so long as he commnented upon it during his presidency. Serial tax avoidance; election, financial, and securities fraud; murder, rape, or petty theft; absconding with the towels from a Four Seasons and defamation. Next time there’s a Republican in the White House, the DoJ is gonna need a bigger boat.

          • bmaz says:

            Well, yes. But that is exactly why such decisions should be ad hoc. They are not all the same.

            • earlofhuntingdon says:

              Hence, the disappointment with the decision by Garland’s DoJ. For one thing, we are left to ponder whether the choice was an instance of rigid adherence to prior decisions – in the questionable belief that that somehow defends the integrity of an institution – or a committed choice made in full agreement with Barr’s logic.

            • timbo says:

              Unfortunately, it seems unlikely that in the current climate that the Congress would attempt to focus the DOJ a bit more in this area. The President shooting his mouth off about personal matters is not something the DOJ should be spending its time defending in court. If a President wants to shoot their mouth off like this publicly, then that President should not have the DOJ backing them up like this. This makes me wonder if Twitler’s DOJ would have also defended other White House employees who felt they were slandered by this alleged rape victim if she had started saying nasty things about those other White House employees who may have been wandering around and magnifying Trump’s personal attacks on her.

              I can’t wait to hear the DOJ try to defend this sort of stupidity furhter up the chain. I’m guessing that any prudent jurists who hear the arguments are going to deep six the DOJ’s getting involved here further. I mean I really hope that they will, even if they don’t do it as a broad precedent.

  12. yogarhythms says:

    Two employees are working in a factory making widgets. If one or both fall down at work the injury’s medical bills are paid by employer because the law states if you work at McDonalds or Raytheon when you get hurt at work everyone is treated the same under Worker’s Compensation law. Except for horseplay defense. if Billy operating machine next to Joe on factory floor was tickling Billy when he fell then no the employer isn’t liable for injury medical treatment because it happened while at work during work hours not break time however there was horseplay going on. I dropped out of law school because i couldn’t pass the baby bar but even I can come up with an argument why FTCA prolly wouldn’t apply to serial rapist’s defamatory remarks aimed at rape victim are prolly not within scope of protection. Lisa M needs to drop this case now.

    • vvv says:

      Not sure I completely understand your hypothetical but if the controlling facts are Billy is tickling Joe when Billy falls, there will likely be a horseplay defense to Billy’s claim. If Billy is tickling Joe when Joe falls and Joe is not complicit to Billy’s acts, there likely would not be a horseplay defense to Joe’s claim.

      Re the DOJ thing, I’ve been thinking of it this way:

      The failed former pres did or did not do a bad act before he was pres, for which he was accused: in response, the failed former pres then said some things while he was still the current failed pres in arguable defense of himself.

      DOJ’s position is that a pres making a verbal defense while in office is defending his office and his ability to carry out his duties, and is therefore entitled to a DOJ defense of his ostensible official act(s) (that verbal “defense”). This obviously completely ignores the issues of when the underlying bad act occurred (before he was pres), the nature of that bad act (rape), the bad things he said in that “defense”, etc., but if the analysis only goes to the libel, he was pres when he said it.

      If I place myself in the shoes of the failed former pres I promptly commit myself or suicide … eh, wait, let me start again.

      In the shoes of the failed former pres, assuming DOJ does come in to defend and any potential immunity defense, etc., is unsuccessful and the matter goes through full discovery and even trial, well, I’m thinking I would *not* want the DOJ handling that stuff.

      I mean, he saves the cost, gets the ego-boost of the DOJ still working for him, but I’d much rather a paid-for team of aggressive attorneys going for a win for me, their client, than DOJ going for a win for the institution (which might could still be a loss for the failed former pres).

      • Silly but True says:

        The alleged underlying offense is libel; there is no issue of when any bad act occurred before he was pres. because that doesn’t matter in the libel case nor does the nature of that bad act (rape). The only thing that matters is any bad things he said in that “defense.”

        A possible motive for DoJ in any case may be to stave off #metoo types of allegations — cases which are argued in venue lacking standard of evidence, etc. like Twitter or “court of public opinion” which could perhaps impose all manner of political implications on a President which could impact official duties.

  13. OldTulsaDude says:

    IANAL and someone correct me if I’m wrong, but my understanding is that if allowed the DOJ standing in for the president would make the lawsuit moot so there would be no trial.

  14. Savage Librarian says:

    Here’s a novel idea E. Jean might try. It’s certainly a lot less crazy than the things the GOP has done. She could submit a complaint to the Civil Rights Division of DOJ. Here’s the process:


    Here is something they say:
    “We also enforce laws that protect people from human trafficking, law enforcement misconduct, and hate crimes.”

    So, maybe she has concerns about law enforcement misconduct. Or age discrimination. Or sex discrimination.

    Maybe she feels that an institution (or two) have been solely dominated by men for decades and have failed to take the concerns she has seriously. Maybe that is why they are treating her libel case the way they are. If she were a man, perhaps they would treat her differently. Or, if a woman had been President, maybe she would never be in this predicament at all.

    Because we live in such a patriarchal society, at first blush this seems at odds with DOJ policies. But, I submit, it might make a lot of sense to many people: women, daughters and wives, for example.

    Here’s the website for the Civil Rights Division, Department of Justice


    • Silly but True says:

      This line of attack could also best be used to iron out the racial disparities in federal tax code in terms of burden of taxes paid. IRS tax code may be racially-blind but it’s not racially or gender neutral. For example, on bottom line average income, Asians pay 75% more in federal income taxes than blacks, about 66% more than Hispanics, and 16% more than whites. Men pay about 16% more than women. DoJ Civil Rights class action against IRS on disparate-impact theory?

        • Silly but True says:

          So it doesn’t look like you’ll post my links, so putting the novel DoJ Civil Rights case more fundamentally detailed:

          There are several places where one can go to seek to divine how much each race pays in taxes (the government doesn’t keep any direct statistics of this). 

          However, numerous sources have parsed how much each income bracket pays in taxes, and numerous sources have parsed how much each race participates within each income bracket; this was the fundamental thesis of the ocupy movement for several years: “the 1%.”

          Finally, the U.S. Census does in fact collect information on income by race and proportion of brackets they are in.  Consequently, it is possible to accurately estimate how much each racial group pays in taxes, and consequently identify if the IRS progressive tax structure despite being blind on race does in fact yield a racially disparate impact on amount or percent taxes paid in ways that could be construed as impermissibly racially disparate impacts under traditional disparate impact theory.
          Disparate impact / adverse impact theory is largely a judicial theory developed from federal case law in several high profile education and cases over decades which has allowed challenges to practices that are nondiscriminatory on their face but have a disproportionately negative effect on members of a legally-protected group.  We will present the issue in simple terms accordinating to traditional disparate impact theory: Asians comprise 3.6% of total income-tax-payers, yet pay 6.86% of income taxes.  The IRS’ progressive tax structure then  creates a disparate impact on Asian-Americans, a legally-protected class, for their taxes paid, causing Asian-Americans to pay nearly twice their “fair share” of income taxes.  There appears to be two proportionality problems: first even without progressive structure, Asians pay more than their general proportion of their population, because the top 40% tax brackets are comprised of 22% Asian-Americans.  But worse, because IRS tax structure is progressive, they pay more for being in the upper brackets because they are Asian, because Asians comprise larger shares of the progressively higher brackets; essentially Asian-Americans on average pay an IRS “Asian tax.”  Under traditional disparate-impact theory, why shouldn’t the IRS’ progressive tax structure be considered institutionally racist against Asians?  Why shouldn’t this be an issue for DoJ Office of Civil Rights to take up, sue IRS to enjoin them from collecting progressive taxes in racially adverse ways?
          Some numbers.
          There shouldn’t be any disagreement about the IRS income “quartile” breakdowns – simply the percent of tax a bracket pays:
          Bracket     % of Taxes Bracket Pays
          Top 5%     38.9
          6-20          25.4
          21-40        18.3
          41-60        9.9
          61-80        5.1
          81-100      2.1
          Census data breaks down income brackets by race; is there any disagreement with:
          Bracket   % of bracket is Asian-American or Pacific Islander
          Top 5%    7.96
          6-20         7.00
          21-40       6.74
          41-60       5.26
          61-80       2.43
          81-100     5.11
          Then, we are left with simple “weighted average” multiplication to derive the % of taxes paid by Asian-Americans and Pacific Islanders:
          % of taxes paid by Asians = 0.389×7.96 + 0.254×7.00 + 0.183×6.74 + 0.099×5.26 + 0.051×2.43 + 0.021×5.11 = 6.86% of taxes paid by Asians
          I googled “percent taxes paid by Asians” and the top response was: “Asian Americans comprise 3.6 percent of total taxpayers” citing Tax Foundation as its source.  (I assume this is true.)

          • Rayne says:

            Site security doesn’t allow automatic posting of any comments containing a certain number of embedded links; when threats to the site or network have increased, security tightens. You’re perfectly capable of citing material without using URLs just as students and researchers do; Scribbr(.)com and BibMe(.)com offer free services to format citations. URLs can be “broken” as I’ve just demonstrated.

            After 161 approved comments to date, you should know by now community members here can’t make claims without substantiation. Further, “Tax Foundation,” assuming it’s the nonprofit think tank at TaxFoundation(.)org since you didn’t fully identify your source, has issues.

  15. Silly but True says:

    I appreciate the need & skepticism.

    Although it should not be a shocking revelation that US tax code despite its facade of race neutrality yields a racially unfair system; neither should disparate-impact theory be anything new.

    Asians comprise a percent of US population and/or percent of federal-income-tax-filers. Is there percent federal-income-taxes paid higher or lower than their demographic share, and why should IRS as Executive Branch federal agency be permitted to assess what amounts to an “Asian tax?”

    • Rayne says:

      Dude. I’m AAPI. I’m not paying more taxes because of my race/ethnicity; I’m paying proportionally more than 1%rs who in the US are overwhelmingly white and have taken tax policy captive. You need to think more deeply about the *why* because there are no checkboxes on tax forms which ask for race/ethnicity which subsequently change tax rate.

      Furthermore, you need to get back on topic of this post.

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