The Impact Of The Denial Of A New Trial On Trump's Defamation Counterclaim Against E. Jean Carroll

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You may remember that E. Jean Carroll brought two defamation cases against Donald Trump. The first case involved allegedly defamatory statements that Trump made while he was president. That lawsuit has been gummed up for years over the question whether Trump was acting in an official capacity, rather than a personal capacity, when he spoke.  Those issues have now been resolved — he was acting in a personal capacity — and the case is set for trial in January 2024.

The second case involved defamatory statements that Trump made after he had left the presidency. That case was tried in May, and Carroll was awarded $5 million in damages. Last week, Judge Lewis Kaplan denied Trump’s motion for a new trial in that second defamation case.

Here’s the interesting part. (You knew I’d get there eventually.) The jury in the second case found that Trump put only his fingers, and not his penis, in Carroll’s vagina. That does not constitute “rape” as “rape” is (narrowly) defined under New York law. The jury thus found that Trump had committed “sexual battery” (which is defined more broadly), but rejected the allegation that he had committed “rape.”

Remarkably, Trump and his defenders have tried to cast this as a victory: “Trump did not rape E. Jean Carroll!” Fair enough; that’s politics. (It may be stupid politics, but it’s politics.)

Beyond politics, however, Trump amended his answer in the still-pending original defamation case to add a counterclaim. Trump alleged that Carroll had defamed Trump by saying that he had raped her, when the jury found that he had not.  (How do you spell “chutzpah”?) That counterclaim is pending.

Here’s what I haven’t yet seen in print: In the order that Kaplan entered last week denying a new trial in the second defamation case, he gutted the counterclaim that Trump filed in the first case.

In the case that was just tried, Trump argued that the jury award was excessive because Trump had not raped Carroll. Kaplan would have none of this sophistry:

As is shown in the following notes, the definition of rape in the New York Penal Law is far narrower than the meaning of “rape” in common modern parlance, its definition in some dictionaries, in some federal and state criminal statutes, and elsewhere. The finding that Ms. Carroll failed to prove that she was “raped” within the meaning of the New York Penal Law does not mean that she failed to prove that Mr. Trump “raped” her as many people commonly understand the word “rape.” Indeed, as the evidence at trial recounted below makes clear, the jury found that Mr. Trump in fact did exactly that.

I’ve omitted three footnotes — the “following notes” that Judge Kaplan refers to at the start of the preceding paragraph — from the block quote. But, oh, what footnotes they are! The first footnote quotes dictionaries holding that “rape” can include any penetration of the vagina — with the penis or with the fingers. The second quotes laws from states other than New York that include Trump’s conduct as rape. And the third quotes the American Psychological Association and the U.S. Attorney General saying the same thing.

So Trump did “rape” Carroll in the ordinary meaning of the word, even if he did not “rape” Carroll within the meaning of New York’s strict statutory definition.

This means that Trump’s counterclaim, alleging that Carroll defamed Trump by saying that he had “raped” her, is toast. He did rape her. He simply did not “rape” her within New York’s narrow statutory definition. Trump’s counterclaim may have been silly to begin with, but it has become frivolous with last week’s decision.

Trump may have the right to leave the counterclaim pending until Kaplan dismisses it. If Trump voluntarily abandons his claim, he may lose the right to take an appeal arguing that the counterclaim should survive. Trump has the right to that appeal; Kaplan may, after all, be wrong. An appellate court may alter Kaplan’s decision and revive the counterclaim.

But when Kaplan himself gets around to thinking about that counterclaim, he’ll dismiss it in a New York minute. And, as I’ve written before, most of Carroll’s still-pending defamation case against Trump has already effectively been decided by collateral estoppel. The main issue that’s left for a jury to decide is the amount of damages that Trump owes Carroll.

Trump will lose another defamation case within the next six months. That may not be a great way to start the primary season.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.