Courts

Trump Claims Victory After $5 Million Carroll Verdict, As Court Reminds Him That He's A Colloquial Rapist

Meanwhile, the RNC is mad that Joe Biden eats ice cream and wears sneakers.

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(Photo by Drew Angerer/Getty Images)

In May, a jury found Donald Trump liable for defamation and sexual abuse and awarded advice columnist E. Jean Carroll $5 million. The parties are now locked in a dispute over what that verdict means for the upcoming trial in January, when the two will face off again in the same Manhattan federal courtroom over similar defamation claims.

In 2019, E. Jean Carroll published her account of being sexually assaulted by the then-president during the mid 90s in a department store dressing room. Trump not only denied the allegations, but he claimed she was part of a Democratic hoax to “get” him. Carroll sued, and in 2020 Attorney General Bill Barr removed the case to federal court under the Westfall Act, arguing that Trump was acting within the scope of his official duties when he claimed Carroll was too unattractive to assault.

Whether Trump was doing his job as president has been the subject of deliberation in three different courts, as the Second Circuit overruled Judge Lewis Kaplan’s ruling that the president was not an employee of the federal government and certified the scope of employment question to the DC Court of Appeals to make a determination under DC law. That issue appears to be almost resolved, as earlier this month the Justice Department reversed its position, noting that Trump’s constant repetition of the defamatory statements after leaving office suggests that the was not acting in an official capacity the first time he made them.

Indeed, one such restatement in October of 2022, along with the newly enacted New York Adult Survivors Act granting one-year to bring sexual abuse claims which would otherwise be time-barred, formed the basis of Carroll II, the case which resulted in the May jury verdict. Trump has appealed that case, but now that Carroll I has finally come back around, each side is pointing to the jury’s findings in Carroll II as preclusive.

For her part, the plaintiff argues that the jury’s finding that Trump both assaulted and defamed Carroll is now the law of the case, leaving only the issue of damages for the Carroll I jury to consider:

On their face, the defamatory statements at issue in Carroll I and Carroll II are materially identical. Moreover, the core question underlying the defamation claim in both actions is “whether Mr. Trump sexually assaulted Ms. Carroll.” As a result, the preclusive effect of the Carroll II jury verdict leaves nothing to resolve with respect to the merits of the Carroll I defamation claim, beyond the amount of Carroll’s damages. [Cit. Omit.]

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Conversely, Trump has tried to frame the jury’s finding that he sexually assaulted Carroll but did not rape her as a win, filing a counterclaim for defamation and seeking to spin the verdict as a repudiation of Carroll’s claims generally in a motion for a new trial or remittitur.

As in most of the four-year history of this case, the court was far more receptive to the plaintiff’s arguments than the defendant’s. Last week, Judge Kaplan denied that motion in a scathing order in which he branded Trump a rapist, at least under the colloquial definition of the term:

[T]he 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.

And he repeated the admonition this week as he approved Carroll’s motion to amend her complaint to conform to the jury’s findings, swapping out the word “sexual assault” for “rape.”

Mr. Trump’s principal argument is just wrong. As this Court explained in its recent decision denying Mr. Trump’s motion in Carroll II for a new trial on damages or other relief, the Carroll II jury’s answer to the special verdict question concerning whether Mr. Trump “raped” Ms. Carroll established only that she had failed to prove that he penetrated her vagina with his penis. Indeed, the jury’s finding that Mr. Trump sexually abused her implicitly determined that he had penetrated her vagina with his fingers, a form of “rape” as that word often is used. In consequence, even if the jury’s response to the “rape” question in Carroll I had issue preclusive effect (i.e., were binding) in this case, a matter on which the Court does not now express any view, it would not have the effect that Mr. Trump contends.

Mr. Trump argued also that leave to amend should have been denied because the substitution of the phrase “sexual assault” for the word “rape” in the amended complaint would fundamentally alter or transform the nature of this case. But that argument too is without merit.

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Meanwhile, Trump continues to insist that his counterclaim should not be dismissed because Carroll defamed him when asked about her subjective thoughts on hearing the jury’s finding that Trump was not liable for rape.

“Well, I just immediately say in my own head, oh, yes, he did—oh, yes, he did. So that’s my response,” Carroll said on CNN.

This defense of the counterclaim, which treats the jury finding that Trump sexually assaulted Carroll as some kind of vindication, was filed by attorney Alina Habba. Habba recently announced that she would be taking a position as general counsel at Trump’s Save America PAC. She has not withdrawn from the Carroll cases, however, and no other attorney has entered an appearance.

In the first trial, attorney Joseph Tacopina did almost all of the cross examination, although Trump presented no witnesses of his own. But with no other attorney beside her partner Michael Madaio entered in this case, it’s looking increasingly likely that Habba will be the one to defend Trump in January. Of course, by then, he’s likely to be facing four criminal indictments, so perhaps the relative importance of a trial which can’t send him to jail will have reached the vanishing point.

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

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.

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