Trump Loses Yet Another Round To E. Jean Carroll

(Photo by SAUL LOEB/AFP/Getty Images)

Thanks to the vicissitudes of the judicial wheel in the Southern District of Florida, Donald Trump has landed himself back in the warm embrace of Judge Aileen Cannon for the documents indictment. But in New York, he's still appearing before Judge Lewis Kaplan in the E. Jean Carroll case. And that's going as badly as ever for him.

Trump defames Carroll with such regularity that her lawsuits against him have to be tried serially. The original New York state case (Carroll I), arising out of the 2019 statements calling her a liar, was put on hold after Bill Barr swooped in and removed to federal court on grounds that Trump had been acting within the scope of his presidential obligations when he implied she was too ugly to assault. That led to a one-year detour through the Second Circuit and the DC Court of Appeals, which eventually determined that this was an issue of fact and kicked it back to Judge Kaplan, who yesterday awarded the DOJ another month to ruminate and decide whether it wants to stick with its original Westfall Act determination.

In the meantime, Carroll filed a second action (Carroll II) based on Trump's defamatory comments in October of 2022, paired with a battery claim under New York's recently enacted Adult Survivors Act. After the jury returned a $5 million verdict in Carroll II, the plaintiff sought to amend her complaint in Carroll I.

Most saliently, Carroll hoped to replace every instance of the word "rape" with "sexual assault," conforming the language to the jury's finding that Trump was indeed liable for sexual battery. This would tee her up to claim that the jury's defamation verdict is the law of the case and should be applied to Trump's 2019 statement, as well as as his near-constant attacks on Carroll.

"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,'" Carroll's attorney Roberta Kaplan wrote in a letter to the court regarding scheduling the remaining case. "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."

Carroll also sought to add another defamation count based on Trump's constant repetition of his defamatory claims about Carroll, most publicly at the CNN Town Hall with Kaitlan Collins just hours after the jury reached its verdict.

Trump's lawyers objected to both amendments, accusing Carroll of attempting to "capitalize on the favorable aspect of the ruling while minimizing the impact of the adverse portion" and "alter the very nature of this case in response to the jury's verdict in Carroll II, which effectively negates her claim."

This is consonant with MAGAworld's attempt to spin the Carroll II verdict as a victory because the jury was apparently unable to conclude from Carroll's testimony whether Trump managed to actually rape her, or was only able to penetrate her digitally. Or as Alan Dershowitz put it, the jury only faulted the former president for "kinda molesting" the plaintiff, and concluded that she was lying about the rape.

They further objected to the inclusion of Trump's recent defamatory statements on grounds of both timeliness and the fair report privilege, which protects accurate reports of official proceedings in defamation suits. This makes complete sense if you pretend that repeating the original defamatory statement is a "report" on the trial and forget that Trump already made this argument and lost the last time he opened his mouth.

In the event, Judge Kaplan could hardly be bothered to re-litigate the issue, spending just one paragraph of his order yesterday granting Carroll's motion to amend, with the breezy notation that "a memorandum opinion may follow." Trump's request that the court deny the plaintiff's requested amendment and allow him to file a motion for summary judgment was cursorily denied as moot. Roberta Kaplan said in a statement, "We look forward to moving ahead expeditiously on E. Jean Carroll's remaining claims."

Will Trump be distracted enough with his multiple criminal indictments and the NYAG's civil suits that he'll forget to make any more defamatory statements about Carroll? Or are we doomed forever to an endless stream of Carrolls III, IV, V on and on forever?

Good thing Trump's got those PACs to pick up the bill.

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.