{T} rump cases are never linear, never black-and-white. It’s always a tug-of-war between the former president’s mercurial temperament and the parallel lack of self-control exhibited by his opposition — which could be seen as either provoked by Trump’s antics, or igniting them in the first place, or a bit of both.
Which brings us to E. Jean Carroll II.
Trump, 77, is currently the defendant in a trial of civil claims brought by the journalist E. Jean Carroll, 80, in Manhattan federal court before senior judge Lewis Kaplan, 79, who was placed on the Southern District of New York bench by President Clinton 30 years ago. (Bill Clinton, by the way, is 77, married to Hillary Rodham Clinton, 76, who lost the presidential election to Trump eight years ago — and if you’ve about had it with these Boomers, me too . . . and I am one!) Predictably, Trump is up to Trumpy antics, which has created an explosive situation between him and Judge Kaplan, who is very smart but also very headstrong.
The trial, which started Tuesday (i.e., the day after Trump’s win in the Iowa caucuses, and a week before the New Hampshire primary, which he is heavily favored to win), is the former president’s second against the same plaintiff. We extensively covered E. Jean Carroll I. I’ll try not to belabor it, but some background is necessary to understand what’s at issue presently.
The 2019 Defamation Claim
Carroll claims that, at a time she cannot precisely remember around 30 years ago, Trump sexually assaulted her in a dressing room at upscale Bergdorf Goodman in midtown, after the two flirted a bit. Trump continues to insist that he doesn’t know her, even though there is a photo of them, together with their then-spouses, apparently chatting amiably in the 1980s. (At his deposition, asked if he recognized Carroll in the photo, Trump erroneously thought it was his second wife, Marla Maples. Trump nevertheless later insisted he’d have had nothing to do with Carroll because “she’s not my type.”)
Carroll never reported the alleged assault to the police. There is no corroborating physical evidence, no surveillance videos, and no eyewitnesses of any part of the encounter. There are two witnesses, friends of Carroll’s, who testify that she contemporaneously reported it to them. Her description was graphic, relating (sorry about this, dear reader) some type of penetration during the struggle — digital but not necessarily penile — though she did not use the word rape (one of her two friends volunteered it upon hearing Carroll’s version of events).
Decades later, when Trump was president, Carroll went public with her allegation, first in a 2019 New York magazine preview of a book she’d written. Not surprisingly, Trump vehemently denied it, claiming on June 21, 2019, that he’d “never met this person in my life” and blasting Carroll as a liar who was trying to sell a book that “should be sold in the fiction section.” Two days later, he repeated that he did not know Carroll — and pooh-poohed a reporter’s allusion to the aforementioned photograph of the two of them together. Another couple of days later, Trump again insisted that “it never happened.” (It was then that he added, “she’s not my type.”)
These three 2019 statements describing Carroll as a liar who was trying to sell a book were the grist for Carroll’s first defamation lawsuit against Trump (to avoid confusion as we proceed, we’ll call it “the 2019 defamation claim”). This is one of two defamation claims being litigated in the current trial (we’ll come to the other).
As I’ve previously explained, the 2019 defamation claim was not in the first trial because Trump and his Justice Department claimed immunity — on the rationale that he was president at the time and responding to such attacks is not part of a president’s job. This claim was sufficiently colorable that, after Kaplan rejected it, it tied appellate courts in knots for a couple of years. (The Biden Justice Department, to the consternation of Democrats, initially supported Trump’s claim, but withdrew support in 2023 when a court decision provided a face-saving retreat.)
The 2022 Defamation Claim and the Sexual-Assault Claim
While the immunity appeals proceeded, Trump left office and, being Trump, resumed the verbal fusillades at Carroll — even though he could no longer plausibly claim immunity.
On October 12, 2022, on Truth Social, he called her allegation “a complete con job” that was “made up.” He poked fun at her then-recent CNN interview with Anderson Cooper, claiming she hadn’t wanted to get caught in details because she knew the alleged sexual assault “never happened” — she was simply “promoting a really crummy book,” and it was all “a complete Scam.” He concluded, “for the record, E. Jean Carroll is not telling the truth, is a woman who I had nothing to do with, didn’t know, and would have no interest in knowing her if I ever had the chance.” This would soon result in Carroll’s 2022 defamation claim.
Meanwhile, in a related development during the Me-Too heyday, New York amended its statute of limitations for sexual assault, enacting a one-year window for claimants to bring otherwise time-barred claims.
Carroll thus used Trump’s commentary and New York’s amendment to add two new claims to her existing 2019 defamation lawsuit: sexual assault (also alleged as rape) and the 2022 defamation claim (i.e., the just-described Truth Social post).
The 2023 Trial
It is here that I believe Kaplan made an error that has caused what is currently in dispute.
The judge runs a tight ship and had set an April 2023 trial date. But at that point, the Trump-immunity issue related to Carroll’s 2019 defamation claim was still being fought out on appeal. Over the objection of Trump (who may well have been more interested in achieving delay than anything else), Kaplan insisted on going ahead with the trial of the sexual assault and 2022 defamation claims. I believe he should have adjourned the trial so that a single jury could resolve all pending claims (and any damages flowing therefrom), including the 2019 defamation claim. If Kaplan was calculating that the outcome of the first trial would obviate the need for a second trial, he was mistaken.
As we recall, Trump declined to participate in the April–May 2023 Carroll I trial — he did not attend the trial, testify, or present any defense, although he had a full and fair opportunity to do all three. The jury found Trump liable on the sexual-abuse claim and the 2022 defamation.
Trump and his supporters have emphasized that the jury did not find he had raped Carroll — although they concurrently shrug at the jury’s findings of sexual assault. As I’ve explained, the no-rape finding is of less moment than Trump contends. The jury didn’t conclude that there was no rape; rather, it found that Carroll had not proved to their satisfaction that the forcible sexual battery and forcible sexual touching it did find necessarily included penile penetration. In a later decision, moreover, Judge Kaplan explained that the jury’s findings “implicitly determined that [Trump] forcibly penetrated her digitally — in other words, that Mr. Trump did in fact ‘rape’ Ms. Carroll as that term commonly is used and understood in contexts outside of the New York Penal Law.”
The jury awarded Carroll $5 million — $2.02 million on the sexual-assault claim and $2.98 million on the 2022 defamation claim. Trump has appealed to the Second Circuit. A decision on that appeal is still pending. Trump has thus not yet paid the judgment, although he was required to put $5 million in an escrow account while the appeal is under consideration.
The 2023 Defamation Claim
As I’ve previously detailed (and as NR reported at the time), immediately after the Carroll I verdict, with his 2024 presidential campaign already taking shape, Trump again took to Truth Social and said of Carroll, “I have absolutely no idea who this woman is. This verdict is a disgrace — a continuation of the greatest witch hunt of all time!” Shortly thereafter, he did a CNN town hall, at which he essentially said the same thing, labeling Carroll “a whack job” and her version of events as “a fake story — made-up story.” As night follows day, Carroll filed a new defamation suit, claiming Trump’s comments exhibited malice and called for substantial damages. We’ll call this the 2023 defamation claim.
Summary of Carroll’s Claims
To summarize, then, Carroll has brought four civil claims against Trump. The sexual-assault and 2022 defamation claims were adjudicated in the first trial. In the second trial that started on Tuesday, at issue are the 2019 and 2023 defamation claims. We are having a second trial for two reasons: (a) Kaplan would not wait for the appellate courts to resolve the immunity issue pertinent to the 2019 defamation claim before commencing the first trial, and (b) even after a jury had already found him liable for defaming Carroll, Trump continued with his rhetorical attacks that are essentially indistinguishable from the remarks that led to the defamation verdict, leading Carroll to sue him again.
The Carroll II Trial: Trump Defenseless
Now, at last, we come to the heated disputes that turned the first two days of this week’s trial into a free-for-all. There is patent enmity between Trump and Kaplan. They bait each other, and the judge has threatened to bar the former president from further attendance at the trial.
The main cause of the friction is that Kaplan has rendered Trump defenseless.
Back in September, Kaplan ruled that because the Carroll I jury resolved two central issues presented in the Carroll II case — namely, that Trump sexually abused Carroll, and that he defamed her — Trump is precluded from contesting them in Carroll II. This is an application of the legal doctrine of “collateral estoppel.” Also known as “issue preclusion,” the doctrine holds that when two parties have already litigated an issue that is identical to a central issue in a second trial between the same two parties, the party that lost in the first go-round is barred from relitigating the issue in the second case. Ergo, Kaplan reasoned, Trump must be barred in the current trial from denying that he sexually assaulted and later defamed Carroll.
This may be right. I must be tentative about this. For starters, as Jeff Blehar and Dan McLaughlin aptly point out, Trump is the “client from hell,” and thus he often gets second-rate legal representation. Throughout his 25-page ruling, Kaplan catalogues claims that Trump’s lawyers failed to raise, as well as incoherent arguments that they did posit. It’s hard to calculate the effect of all that.
It is safe to say, though, that Kaplan’s pretrial ruling gives the ongoing trial that began Tuesday the same Alice in Wonderland aura of the civil fraud case brought against Trump by New York state’s elected Democratic attorney general, Letitia James. There, the elected Democratic judge, Arthur Engoron, essentially pronounced Trump guilty (or, in the civil context, liable) before the trial began — such that the only point of the eleven-week trial (in which we are now waiting for Engoron’s final decision) was to assess how severe the penalty would be.
Verdict-before-trial is playing out as mind-bendingly in Carroll II as it has in the New York fraud case. Carroll is seeking $10 million in damages; Trump claims she rates zero. Obviously, the just landing spot in that range hinges on whether he sexually assaulted her and then falsely accused her of lying about it — i.e., whether it happened. To be sure, that was the central issue in the first trial, and Trump failed to participate, much less testify and present a defense. If he’s innocent, he has no one but himself to blame for the verdict against him. Nevertheless, the issues in Carroll II are not identical to those in Carroll I. The different defamation claims are distinct factual transactions, even though there are common facts.
To be sure, collateral estoppel is designed to prevent the relitigation of essential facts. Let’s put aside the 2023 defamation claim. After all, if Trump foolishly continues verbally attacking Carroll, then she’s going to keep suing. Since Trump knows that, it’s fair to counter that he shouldn’t get to relitigate the case every time.
By contrast, the 2019 defamation claim should have been in the first trial. That would have given Trump an opportunity to make his full defense against all pending claims. It wasn’t in the case because Kaplan insisted on going to trial without it. So in the first trial, the court tells Trump that he can’t defend himself on the 2019 defamation claim because it is not part of the case; but now in the second trial, the court tells Trump he can’t defend himself on the 2019 defamation claim because his guilt was already established in the first trial.
The circularity of this becomes clearer when we consider the issue of damages on the 2019 defamation claim. Trump has argued that Carroll’s damages in the second trial should be discounted by what she was already awarded in the first trial. Kaplan rejects that contention because, although he concedes that the first jury heard evidence about the 2019 defamation, that transaction was not alleged as a formal claim in the first trial, so therefore financial harm is an open question. But if the fact that the 2019 claim wasn’t formally in the case allows Carroll to reopen the question of damages, why shouldn’t that same formality allow Trump to reopen the questions of whether there was a sexual assault and whether he actually defamed her — the two most significant factors in calculating damages?
Farce, Stage Whispers, and Churlishness
With the most salient issues suspended from the case, the trial is farcical. Carroll claims that Trump’s barbs have destroyed her reputation, and she must be compensated — notwithstanding that she was awarded significantly more for them in the first trial than for the sexual assault. For their part, Trump’s lawyers argue that Carroll has never had it so good — she is more famous, more in demand, and more beloved in the world she inhabits than she ever dreamed she’d be. To hear them tell it, she should be paying Trump!
In any event, the issue preclusion is the main driver of Trump’s misconduct in court. Since the judge won’t allow him formally to defend himself, Trump is communicating his defense to the jury by stage-whisper. On the official court record, he is not allowed to tell the jury he didn’t do it and that she is lying; so he is making clear to the jury, with off-the-record antics, that he does not accept the trial’s premise that he is guilty.
This, of course, is angering Kaplan. Yet, Kaplan knows that the core theme of Trump’s political campaign is that all the trials against him are Democrat-orchestrated witch hunts. In that telling, Kaplan knows he is in the role of Clinton-appointed archvillain. Determined not to play along, Kaplan has told Trump that he grasps that Trump would like nothing better than for Kaplan to ban him from the courtroom over Trump’s disruptions. That would instantly become ammunition for the next Trump political rallies. So Kaplan is walking the line between controlling the courtroom and feeding Trump’s political narrative.
Still, the judge has tripped over that line when it comes to Trump’s reasonable request for a one-day adjournment.
Trump’s mother-in-law, Amalija Knavs, died last week, and her funeral was today in Florida. It was a bit tendentious, yet understandable, that Kaplan denied Trump’s original request that the trial be postponed until next week. After all, Trump blew off the last trial despite Kaplan’s offering to make accommodations so he could attend; plus, during the same week Trump claimed he needed an adjournment to attend the funeral, he had scheduled campaign appearances in New Hampshire.
But still, Trump modified his request to a one-day adjournment. He has been attending the trial, which a court should encourage a party to do. More to the point, no matter what Kaplan may think of him personally, Trump is a former American president, and his wife — more admired nationwide than Trump — is a former first lady who just lost her mother. Judge Kaplan is a smart guy; it’s hard to imagine him denying a reasonable request from any other former president, especially for the benefit of that former president’s wife. And besides being in distress over her loss, we have to assume Mrs. Trump is pained by the salacious details of the Trump–Carroll escapade. In these circumstances, Kaplan just seems churlish in denying a brief, compassionate adjournment request — even if he is privately convinced that Trump is playing games.
And churlish is exactly how Trump wants to portray him. Trump has to figure he’s going to lose this trial; at the moment for him, it’s all about the politics of 2024. As usual, the former president’s provocations induce the worst reactions from his adversaries — and Trump has made an adversary out of Kaplan, even if the judge would surely deny being one.
It ought to make for a combustible day in the courtroom on Monday, when Trump is scheduled to testify, with Carroll seated a few feet in front of him, and Kaplan, on the bench, determined to enforce the restrictions he has imposed on Trump’s defense.