While there are reasons to be skeptical of Carroll’s claims, Trump has himself to blame for the legal blunders that led to the astonishing outcome.
A federal appeals court has upheld a civil jury’s $83.3 million verdict against President Trump for defaming the journalist E. Jean Carroll.
The same court, the Second Circuit in Manhattan, had previously upheld a $5 million judgment against the president after the first trial (of two) on Carroll’s claims that Trump, (a) in the mid-Nineties, sexually assaulted her in a changing room at a high-end midtown department store, and (b) since 2019, has repeatedly and slanderously accused her of lying about the incident.
Yesterday’s ruling upholds the verdict in the second trial, which involved two defamation claims, arising out of statements Trump (1) made during his first term and (2) repeated while out of office.
The astronomical damages award in the second trial — with the jury paying out for defamation claims roughly 40 times more than the $2.02 million that the first jury had awarded for the claimed sexual assault — was a major point in Trump’s second appeal. In its 70-page per curiam (unsigned) opinion, the unanimous three-judge panel — Judge Denny Chin, an Obama appointee, and Judges Sarah Ann Leilani Merriam and Maria Araújo Kahn, two Biden appointees — rejected the president’s contentions. (As we recently discussed, Trump had more success in the appeal of the state civil verdict against him (in Attorney General Letitia James’s business fraud case), which an appellate court invalidated last month.)
Perusing yesterday’s opinion, it is bracing to read the federal appeals court’s factual recitation of Carroll’s case against the sitting president, which begins: “In 1996, Carroll encountered Trump at the Bergdorf Goodman department store in Manhattan where he sexually assaulted her by forcibly inserting his fingers into her vagina without consent.” While the legal judgment on that allegation is now final, Trump has maintained his innocence since Carroll first published her account in a 2019 memoir, about a quarter century after she alleges it occurred (so long that she has trouble fixing the year, let alone the date) — although, as we’ll see, he failed to contest Carroll’s claims in the forum where it really counted, the first trial.
The appellate panel conceded that the award in the second trial — $65 million in punitive damages plus $18.3 million in damages for harm Carroll supposedly suffered due to Trump’s diatribes against her — “approaches the upper limit of reasonableness.” Nevertheless, the judges upheld the award, reasoning that there is no mathematical bright line that signals a constitutional limit that would fit every case. For comparative purposes, the judges cited recent punitive damages awards against such defamation defendants as Alex Jones (over $321 million for falsely claiming the Sandy Hook mass-murder was staged) and Rudy Giuliani ($75 million to two election workers falsely accused of ballot fraud). The panel further observed that Trump had undeniably persisted in claiming Carroll had lied about him, even after the first jury found him liable for the sexual assault and for another instance of defamation. Prior to deliberations, the second jury had been instructed to fashion a punitive award in an amount “necessary to deter Mr. Trump from continuing to defame Ms. Carroll.”
To my mind, for what that may be worth, the punitive damages for defamation remain wildly out of proportion in light of the first jury’s damages award for the actual assault. As for compensatory damages, it sure seems that, far from damage, Carroll’s career got a tremendous boost from the Trump attention. In fact, she’s endeavored to cash in with yet another book. The notion that she was financially harmed — to the tune of an additional $18 million over and above the $3 million the first jury had already given her — seems outlandish. Nevertheless, because they are based on fact determinations by the jury, damages verdicts are rarely disturbed on appeal.
In any event, although there are significant reasons to be skeptical of Carroll’s claims, Trump has himself to blame for the legal blunders that led to the astonishing outcome.
The first trial occurred in spring 2023. At that point, it already seemed likely that he’d win the Republican presidential nomination (despite an ongoing Democratic lawfare campaign that would also see him subjected to the aforementioned civil fraud trial in New York and to four criminal indictments — in New York, Washington, D.C., Palm Beach, and Atlanta). Unlike in a criminal trial, a civil defendant is not required to attend the proceedings, though not doing so can be perilous, as it was in this instance. Trump elevated political interests over legal ones: He calculated that if he showed up in court and contested the allegations by testifying, that would draw more attention to the matter; so he took an overseas trip and carped to the media about Carroll — to the abundant irritation of the trial judge, Clinton appointee Lewis Kaplan — but did not attend or present a defense.
This made it a near certainty he would lose the case. To be sure, the claims Carroll had waited decades to allege were scantly corroborated (a couple of contemporaneous reports to friends, but no forensic evidence, eyewitness accounts, surveillance video, or the like). But she held up fairly well against the aggressive cross-examination of Trump’s then-lawyer, Joe Tacopina (a skilled New York City defense attorney); and Kaplan helped Carroll immensely by controversially allowing her to support the allegations with evidence of Trump’s alleged propensity to abuse women sexually — two other women who described groping incidents (but not rape or forced penetration, as Carroll claimed, plus the infamous Access Hollywood tape, in which Trump bragged about habitually forcing himself on women without their consent). Often, appeals courts frown on cases in which the proof about extraneous misconduct overwhelms the proof of the actual allegations in the civil complaint (or criminal indictment); the law, however, has made this more common in sexual assault cases, due to the data which show that, because of trauma, many victims take many years to come forward, by which time forensic evidence is rarely recoverable.
Just as consequential as the evidence permitted by the judge was a crucial point of law that distinguishes civil cases from criminal ones: In the former, the judge instructs the jurors that they are free to draw a negative inference against a defendant who fails testify (i.e., if he had an innocent explanation, he’d have told the jury what it was — under oath subject to cross-examination). In criminal cases, the courts have interpreted the Fifth Amendment to bar prosecutors from even mentioning a defendant’s failure to testify, and to suggest a negative inference is grounds for a mistrial or reversal of any conviction.
Besides this, as I stressed at the time, Trump created a practical problem for himself: Juries tend not to look favorably on litigants who don’t show up for trials. After all, the jurors, like the judge and other trial participants, are compelled by law to put the rest of their lives on hold and attend each day’s court session.
It was unsurprising, then, that the now-president lost the first case. Still, the comparative paltriness of the damages award (again, about $2 million, with about $3 million in defamation damages) suggests that the jury was not overwhelmed by Carroll’s account; had Trump mounted a convincing defense, things might have gone differently.
The now-president’s ill-conceived strategy became an epic face plant because of his additional defamatory statements, two of which remained to be tried. They were not included in the first trial because one occurred while Trump was president (in the first term) and was tied up in litigation over his immunity claim, and the second occurred after Carroll won the first trial — indeed, in a CNN interview in which he reacted to the first jury’s verdict against him.
Changing tacks, Trump decided to contest the second trial in court. But it was too late. Based on legal “res judicata” principles, Kaplan held that Trump would not be permitted to claim that he had not sexually assaulted Carroll; that is, by not attending, testifying, or presenting any defense at the first trial, despite having been given every opportunity to do so, Trump had forfeited the right to any further trial of that issue. (Res judicata is Latin for “the matter that has been judged” — a party may not relitigate a claim that has already been decided in a legal dispute between the same parties.)
While I have questioned that ruling, the Second Circuit’s decision yesterday sustained Kaplan’s reasoning. In so doing, the panel noted that Trump and his legal team made various statements throughout the second trial informing the jury of Trump’s position that Carroll had falsely accused him, notwithstanding Kaplan’s ruling and his many admonitions against doing so.
Hence, the jury in the second trial never had to resolve whether Trump had committed sexual assault. When a jury has to resolve a question of liability as to which there is material doubt, that generally has a mitigating effect on the damages calculation. But here, the trial was solely about the damages award, and the main question became: How high does the jury need to go to discourage a man of Trump’s proclivities and billionaire resources from continuing to talk about Carroll? (In the federal Southern District of New York, the civil jury of nine members was mainly drawn from Manhattan and the Bronx.)
In yesterday’s ruling, the panel also rejected Trump’s claim that the Supreme Court’s 2024 decision holding presidents immune from liability for official acts (Trump v. United States) required reversing the Circuit’s prior ruling that Trump was not immune for defamatory statements made against Carroll during his first term. I doubt the Supreme Court would be interested in reviewing that decision since it may not have made much difference: Again, there were two claims of defamation in the second case, and one of them occurred when Trump was out of office and unquestionably lacked immunity; there’s thus little need to wrestle with the potentially knotty question of whether Trump’s statements about Carroll while president should be deemed official acts (immune) or private statements (not immune).
Although Trump will probably appeal, I similarly doubt the Supreme Court would see much point in reviewing claims about the size of the damages award. It has gotten a great deal of attention due to Trump’s celebrity (and objectively, the outsize amount should be cause for pause). As the circuit panel noted, however, it is not as exorbitant as some damages awards in other defamation cases.
Interestingly, President Trump was represented on appeal by D. John Sauer, the appellate litigator who successfully argued the Supreme Court immunity case on his behalf. Sauer is now the solicitor general of the United States in the second Trump administration.