(Photo by Win McNamee/Getty Images)
On Tuesday, January 16, Trump will face E. Jean Carroll for his second defamation trial. But this time, the only issue for the jury is how big a check the former president will have to cut to the advice columnist.
In May, a jury found Trump liable for defamation and sexual abuse, awarding Carroll $5 million in damages. Because the defamatory statements at issue in two separate trials are substantially the same, Judge Lewis Kaplan granted partial summary judgment in September on the issue of defamation. Trump is now precluded from claiming that he never assaulted Carroll and from arguing that the statements are not defamatory.
In the first trial, Trump’s lawyer Joseph Tacopina was able to convince the jurors that Trump might only have been able to penetrate her with his hand, and not his penis, when he threw her up against the wall of the department store dressing room and yanked down her tights. The jury found the former president liable for sexual abuse, but not rape. Judge Kaplan has ruled over and over again that, although digital penetration does not meet the New York statutory definition of rape, it does meet the colloquial definition, and thus Carroll cannot be branded a liar because she said Trump raped her.
And yet, Trump’s lawyer Michael Madaio continues to file “Eli Cash” motions, presupposing … maybe he didn’t?
The latest of these came on Friday night, when Madaio responded to an evidentiary motion by Carroll’s lawyer Roberta Kaplan by demanding once again to relitigate the issue, or at least to tell the jurors about the prior verdict to prove, essentially, that Carroll lied about having been raped:
Plaintiff accused Defendant of raping her; regardless of what meaning she ascribed to it, she used that very specific word both in her book and throughout her legal complaint. Defendant, in turn, denied that he raped Plaintiff and a jury subsequently found that Plaintiff had not proven by a preponderance of the evidence that Defendant raped her. This supports the argument that Defendant’s statements were not made with common law malice, as a jury found that no rape had occurred. Whether it is in the context of the New York Penal Code or otherwise is irrelevant. With this in mind, Fed. R. Evid. 608(b) is not applicable, as this evidence does not apply to Plaintiff’s character for truthfulness, but rather it applies to Defendant’s right to defend himself and how he went about doing that without malice.
Madaio went on to suggest that the rape issue is relevant to damages because “this evidence directly bolsters that it was Plaintiff coming forward with allegations against Defendant, and not Defendant’s denial, that caused her any damages (to the extent there is any damage).”
“The jury found that there was no evidence that Defendant raped Plaintiff, which supports a finding that it was Plaintiff’s baseless allegation of rape that would cause any damage, not Defendant’s statements,” he added, just in case someone might be courteous enough to extend him the benefit of the doubt on the theory that no one could possibly have said something that offensive on purpose.
Suggesting that Carroll damaged herself by accusing the former president of raping her is a bold move — particularly when your partner Alina Habba spent two years screwing around with “dilatory” motions and pissing off the court. In any event, Madaio’s letter appears to have annoyed the cantankerous jurist enough that he dashed off an order on Saturday evening.
“As the Court already has held, the Carroll II Penal Law rape conclusion does not collaterally estop Ms. Carroll in any respect,” the judge fumed, noting that the verdict from the first trial “conclusively establish[ed] that Mr. Trump did, forcibly and without her consent, penetrate Ms. Carroll’s vagina with his fingers.”
“He nevertheless falsely defamed her – from the most prominent “bully pulpit” in the world – of having lied, of having made up the whole story,” he went on. “Thus, Mr. Trump’s suggestion that the Carroll II Penal Law rape conclusion would be “probative” on the issue of whether his false and defamatory statements were made with common law malice, even if the Penal Law rape conclusion were binding on Ms. Carroll – which it is not – would be baseless.”
Meanwhile, Trump spent the weekend whining that he’s not allowed to tell the jurors that Carroll once had a cat named “Vagina.”
Seems relevant!
Carroll v. Trump I [Docket via Court Listener]
Carroll v. Trump II [Docket via Court Listener]
Liz Dye lives in Baltimore swhere she writes the Law and Chaos substack and appears on the Opening Arguments podcast.