What To Expect When You're Expecting A Trump Defamation Trial. Again.

Do you feel lucky, punk? Well, do ya?

Tomorrow morning, the second E. Jean Carroll defamation trial kicks off in New York. It’s been a long time coming. In fact, Donald Trump has been trying to put off this reckoning for more than four years.

In June of 2019, New York magazine published an excerpt from Carroll’s book, What Do We Need Men For?: A Modest Proposal, in which the advice columnist described Trump sexually assaulting her in a department store dressing room in the mid-90s. Trump immediately went on the offensive, accusing Carroll of fabricating lies that “should be sold in the fiction section.”

“If anyone has information that the Democratic Party is working with Ms. Carroll or New York Magazine, please notify us as soon as possible,” he fulminated, adding later, “I’ll say it with great respect. Number one, she’s not my type. Number two, it never happened.”

The Runaround

That November, Carroll sued the then-president for defamation in New York state court, setting off a four-year quest to hold him accountable. First he ducked the process server. Then he claimed that New York had no jurisdiction over him because he was a Florida Man. Then he argued that a sitting president couldn’t be sued in state court. When all that failed, he had Attorney General Bill Barr swoop in and demand to substitute Uncle Sam as defendant, transferring the case to federal court in September of 2020.

Barr argued that the president is expected to comment on the news of the day, and thus Trump was simply carrying out his presidential duties when he implied that Carroll was too unattractive to sexually assault. A successful substitution would end the case entirely because Uncle Sam enjoys sovereign immunity and cannot be sued absent a specific statutory waiver; there is no such waiver for defamation. But when it landed on his docket, US District Judge Lewis Kaplan ruled that shit-talking Carroll was not part of the president’s job and prepared to try the case.

Trump appealed to the Second Circuit, which thought about it for a good long time and eventually kicked the case to the DC Court of Appeals (the equivalent of a state supreme court) to think about it some more. Finally, in April of 2023, the DC court ruled that, under DC law, it was the trial judge’s job to figure out whether the president was acting within the scope of his official duties when he slagged a sexual assault victim. And, after some more hemming and hawing from the Second Circuit, the case landed back in Judge Kaplan’s courtroom, where he once again ruled that Trump was not doing his job when he defamed Carroll.

During that circuitous journey, Donald Trump departed the White House for Mar-a-Lago, where he continued to defame Carroll in the private sector. As the DC Court of Appeals and Judge Kaplan both observed, this undercut his claim that he was doing official president stuff when he called her a liar back in 2019. It also got him sued again, in a case which came to be known as Carroll II.

Carroll II involved defamatory statements in 2022, as well as a sexual abuse claim under New York’s Adult Survivors Act. In May of 2023, a jury found Trump liable on both counts and ordered him to pay $5 million in damages.

Naturally, Trump appealed again, but he was still stuck with the jury’s finding that he had assaulted and defamed Carroll. And because the defamatory statements in Carroll I were substantially the same as the ones in Carroll II — “While I am not supposed to say it, I will. This woman is not my type!” — Judge Kaplan granted partial summary judgment in Carroll I, ruling that the statements at issue were defamatory and barring Trump from denying the assault in the second (first) case. (Where a court has held that A hit B in one case, A doesn’t have to prove the assault again in a subsequent case; it’s a settled issue.) In plain English, the only issue left for the jury this week is how much Trump is going to pay Carroll in damages for the 2019 statements.

How to Piss Off a Federal Judge

Also in the meantime, Trump’s lawyers acted like assholes.

It is hard to overstate how obnoxious Alina Habba and her partner Michael Madaio have made themselves to the court. They filed motion after motion asking for relief that had repeatedly been denied. They made bad faith claims that Carroll had lied in a deposition about funding for her litigation. (She hadn’t.) They pulled a last-minute stunt demanding to introduce the DNA evidence they’d refused to provide for three straight years. And to top it all off, they were really, really sloppy.

For example, in March of 2023, Trump’s expert witness got tossed in the first trial for being not an expert and barely a witness — in his deposition, he admitted that he eschewed traditional methodologies in favor of his own “educated feel,” basing his damages estimate on Google searches and “four or five newspaper articles” he’d read about the case. But, rather than finding someone else, Trump’s lawyers went with the same guy for the second trial and were shocked in October when the court bounced him again. Four weeks later, they were shocked again when the court declined their eve-of-trial request to substitute an unnamed expert witness for the one who got excluded.

And just this week Habba requested a one-week delay because her client would “not be able to be present on Wednesday and Thursday as he will be traveling to be with his family and attending [his mother-in-law’s] funeral.” As Carroll’s lawyers pointed out, Trump will be at a rally in Portsmouth, New Hampshire on Wednesday night. (Oh, Alina!)

So Trump did not get his postponement, although the judge agreed that, if there were no further defense witnesses by Thursday, he would put off Trump’s own testimony until Monday the 22nd. In fact, Trump never attended a single second of the Carroll II trial and certainly never took the stand in his own defense, thanks to his prior (competent) counsel, Joseph Tacopina, who made damn sure to keep Trump far away from the jury. Trump is a horrible witness who can scarcely go five minutes without lying. In deposition, he volunteered that he was not interested in having sex with Carroll’s lawyer, even as he admitted that, “fortunately or unfortunately,” men like himself have always gotten away with grabbing women by their genitals. Watching that on tape was bad enough — Tacos wasn’t going to risk a live rendition for the jurors.

But now Tacopina is gone, leaving Trump in the hands of Habba and Madaio, who are certainly not in the habit of restraining their client’s irrational impulses. The former president is promising not only to attend the trial, but to take the witness stand and “explain I don’t know who the hell she is.”

Of course he can’t testify that he never met Carroll when the law of the case is that he sexually assaulted and defamed her. Nor can he discuss litigation funding, or accuse her of being a tool of evil Democrats, or shout that she named her cat “Vagina,” something he makes great noise about on social media. None of this is relevant or admissible, despite ineffectual mumblings from Madaio that it goes to Trump’s state of mind and is thus pertinent to the issue of punitive damages.

In response to Trump’s threats, Carroll requested that the court adopt certain “prophylactic measures and curative instructions” to prevent a repeat of his behavior last week at his civil fraud trial in New York State court. There Trump defied an explicit order to refrain from making irrelevant arguments and personal attacks on the prosecutors and the court. And he did it with the apparent connivance of his lawyers, including Habba, who teed him up to rant for the last five minutes of their allotted time, betting correctly that Justice Arthur Engoron would simply cut him off, rather than letting the bailiffs tackle him and drag him out of court.

In that case, Trump’s outburst made little practical difference, since there was no jury to contaminate. But here, Carroll points out, “Trump might perceive a personal or political benefit from intentionally turning this trial into a circus” and “in seeking to poison these proceedings.” Put simply, there’s a substantial risk that Trump will trigger a mistrial by lying to the jury or referring to impermissible evidence.

Nevertheless, Judge Kaplan denied Carroll’s request, instead issuing a generalized warning that the “Court will take such measures as it finds appropriate to avoid circumvention of its rulings and of the law.” This is unlikely to dissuade Trump from taking the stand if he’s so inclined — nor is it ominous enough to trigger the self-preservation instincts of his counsel, who could find themselves in the soup with their client if he pops off in court. And so coverage of this week’s trial is likely to be dominated by whatever shenanigans Trump and his lawyers try to pull in the presence of the jury.

The Week Ahead

Trump’s political strategy is to scream invective and discredit the court in advance, hoping to blunt the impact of yet another jury confirming that he sexually assaulted Carroll and then lied about it.

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His legal strategy is to claim that Carroll suffered limited damages because she “wanted (and expected) to receive a significant amount of attention in connection with her accusation, thereby reducing the likelihood that she suffered mental distress due to the amount of attention she ultimately did receive.” Alternatively his lawyers argue that the avalanche of hate and death threats was occasioned by Carroll’s initial accusations and regular media appearances, not by Trump’s defamatory statements. But a late ruling by the court barred most of the evidence Madiao and Habba were relying on to make this argument, and it’s not clear whether they have a single witness lined up other than their client.

Indeed, Trump presented no case at all in Carroll II, where the jurors were tasked not just with assessing damages, but also with determining his liability for assault and defamation. That trial lasted just two weeks, and this one might go even faster if Trump reverts to form and contents himself with shouting inanities from afar. But if he shows up and makes good on his promise to testify that he never met Carroll, he runs the risk of getting himself and his lawyers held in contempt of court.

So you gotta ask yourself, punk, do you feel lucky?

Well, do ya?

[Carroll v. Trump I, Docket via Court Listener / Carroll v. Trump II, Docket via Court Listener]