If the purpose of damages in a defamation suit is to deter the defendant from libelslandering the plaintiff, the $5 million verdict in the case of E. Jean Carroll vs. Some Asshole failed spectacularly. The very next day after a jury found him liable for sexually assaulting and defaming the advice columnist, Donald Trump described her allegations as a “fake story,” telling CNN’s Kaitlan Collins at the network’s ill-advised town hall, “This woman, I don’t know her. I never met her. I have no idea who she is.” He went on to suggest that Carroll was either too old — “about 60 years” — or perhaps too promiscuous to be sexually assaulted.
“What kind of a woman meets somebody and brings them up and within minutes, you’re playing hanky-panky in a dressing room, okay? I don’t know if she was married then or not,” he snorted.
Later he repeated the allegations on his idiotic social media platform.
Clearly, the former president is not deterred. Luckily, Carroll is likely to get another crack at him because the first part of her defamation case appears finally to be coming back around.
To recap the circuitous path of this case: In 2019, Carroll published her book What Do We Need Men For?: A Modest Proposal (Wonkette cut link) in which she accused Trump of sexually assaulting her in a Bergdorf Goodman dressing room in the mid-’90s. Trump immediately called her a liar, implied she was too ugly to assault, and accused her of being in cahoots with Democrats. Carroll sued for defamation in New York state court, and Trump proceeded to duck the process server, claim absolute immunity, argue that he was immune from process as a Florida resident, and then, on the eve of discovery, got bailed out by then-Attorney General Bill Barr, who moved to substitute the government as defendant under the Westfall Act on the theory that Trump was just doing his job as president when he shit talked her.
That had the effect of automatically removing the case to federal court, even though US District Judge Lewis Kaplan rejected the DOJ’s argument that calling Carroll a liar was part of Trump’s official duties in October of 2020. Trump appealed to the Second Circuit, which punted the issue to the DC Court of Appeals, which then took its sweet time ruminating on whether calling a woman too unattractive to assault was within the scope of Trump’s employment as a matter of DC law. A finding that Trump was just presidenting when he slagged Carroll would have the practical effect of mooting the case, since the government can’t be sued for defamation.
In the meantime, Trump continued to say nasty, horrible lies about Carroll, particularly in October of 2022, when he unleashed a spectacularly abusive rant on Truth Social. But by then, he wasn’t president, so there was no one to bail him out. Moreover, repeating the statement as a private citizen wasn’t a great data point for Trump’s argument that he’d just made the original 2019 statements as part of his official obligation to comment on matters of public interest.
Also in 2022, New York passed the Adult Survivors Act, giving victims of sexual abuse a year to file civil claims which would otherwise be time barred. On Thanksgiving, the very day the law came into effect, Carroll filed a second suit with a battery claim under the ASA and a second defamation charge. That case, commonly referred to as Carroll II, went to trial last month resulting in the jury awarding her $5 million.
On the eve of trial in Carroll II, and too late to allow the cases to be consolidated, the DC Court of Appeals finally came back and said that scope of employment was basically an issue for the trier of fact. Judge Kaplan already ruled on this issue more than two years ago, although he still has to rule again before the original defamation case, AKA Carroll I, can go to trial. But since the case was filed in 2019, the facts on the ground have changed. To wit, a jury has now declared that it is a fact that Trump did sexually assault Carroll in that department store dressing room.
There’s also the constant firehose of defamatory shit Trump says about Carroll on social media and every time someone sticks a microphone in his face. And not for nothing, but his lawyers Alina Habba and Joseph Tacopina have managed to deeply piss off Judge Kaplan with their bad faith antics.
And speaking of bad faith … a letter motion from Carroll’s lawyer Roberta Kaplan (no relation to Hizzoner) strongly implies that Trump’s counsel is threatening to sue Carroll. In a footnote, she writes that she met with “Counsel for Trump” on the morning of May 22, and that they “threatened to file a separate case against E. Jean Carroll in retaliation and possibly to seek sanctions.” Indeed Trump himself said in a deposition that he intends to sue Carroll and her attorney at the conclusion of the proceedings. That was the same deposition where he volunteered that he was not sexually attracted to Carroll’s lawyer — which no doubt impressed the jury when they watched the video of it at trial.
Note that Trump’s counsel in Carroll II, Alina Habba, was sanctioned along with her client by US District Judge Donald Middlebrooks in the RICO LOLsuit she talked Trump into filing against Hillary Clinton, her supposed BFF James Comey, and half of DC. And some of the million dollars they owe in attorneys fees goes to Roberta Kaplan, who represented Rep. Debbie Wasserman Schultz and the DNC in that idiotic exercise. Safe bet that the usual collegial relationship between the parties’ counsel is, umm, strained.
In that letter motion, Carroll requested an expedited briefing schedule, since the procedural and evidentiary issues in Carroll I are substantially the same as in Carroll II. She also moved to treat the jury’s findings in Carroll II as preclusive, taking the issue of whether Trump defamed Carroll off the table and leaving “nothing to resolve with respect to the merits of the Carroll I defamation claim, beyond the amount of Carroll’s damages.” And finally, Carroll would like to amend her complaint to add some of the horrible shit Trump has said about her recently. Obviously, the defendants are going to want … none of that.
Judge Kaplan set a brisk briefing schedule, ordering a response to the letter by tomorrow, and giving two weeks for the parties to brief on the proposed amended complaint. And although the government asked for two additional months to digest the DC Court of Appeals order in light of the evidence in this case so it could decide if it will bother trying to argue again that Trump was acting within the scope of his employment, Judge Kaplan ordered that “Government counsel promptly should begin their review of deposition and other discovery materials.” Which doesn’t sound like he’s going to give the DOJ oodles of time!
TL, DR? Trump didn’t find out enough already, so now he’s going to find out some more.
[Carroll I, Docket via Court Listener / Carroll II, Docket via Court Listener]
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