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(Photo by Evan Vucci-Pool/Getty Images)
As Donald Trump’s legal troubles mount, his many civil issues have not gone away. In addition to the civil prosecution by the New York Attorney General, Trump has several defamation LOLsuits and appeals pending, as well as the second E. Jean Carroll suit.
In the Carroll case, he lost yet another round today as Judge Lewis Kaplan dismissed the former president’s counterclaim against the advice columnist, in which he alleged that she defamed him in statements made after the jury verdict in the first trial. Carroll’s original lawsuit (Carroll I), filed in 2019, was delayed multiple years by Trump’s attempt to get the government to substitute itself as defendant. The trial court found that Trump was not acting within the scope of his official duties when he said Carroll’s sexual assault allegations were part of hoax to gain money and help Democrats beat him, but Trump appealed to the Second Circuit, which punted to the DC Court of Appeals. That case has now returned to Judge Kaplan’s courtroom and is scheduled for January.
In the meantime, Trump steadily repeated the allegations after leaving office, and in 2022 Carroll filed a second defamation suit (Carroll II) over his later statements, plus a battery count under New York’s newly enacted Adult Survivors Act. In May of this year, a jury awarded Carroll $5 million in the second suit, finding that Trump sexually abused and defamed her, but not that he had raped her within the narrow confines of New York’s Penal Law.
Trump has tried to spin this as a victory of sorts, insisting that the jury found that Carroll lied about the attack. In addition to the counterclaim, Trump pointed to the verdict in a motion for a new trial or remittitur, a motion for collateral estoppel seeking to limit the damages allowable in Carroll I based on the jury verdict in Carroll II, and a motion to block Carroll from amending her complaint to replace the word “rape” with “sexual assault.” The court disagreed, noting that that the jury did find that Trump forcibly penetrated Carroll with his fingers, if not his penis, that this conduct meets the legal definition of rape in multiple jurisdictions, and that is consistent with most people’s colloquial definition of the term.
The court branded Trump a “digital” rapist, and continued to do so today in the order dropkicking the countersuit along with several of Trump’s affirmative defenses.
In his counterclaim, Trump pointed to an interview Carroll gave on CNN after the verdict during which she was asked how she felt when the jury rejected the rape claim.
“Well, I just immediately say in my own head, ‘Oh, yes, he did. Oh, yes, he did,’” she answered.
The court ruled that this statement could not be defamatory because it was substantially true because the jury found that Trump did rape her, albeit not within the narrow terms of the statute:
Indeed, the jury’s verdict in Carroll I establishes, as against Mr. Trump, the fact that Mr. Trump “raped” her, albeit digitally rather than with his penis. Thus, it establishes against him the substantial truth of Ms. Carroll’s “rape” accusations. In any case, the Carroll II jury’s Penal Law rape finding does not even establish, as against Ms. Carroll, Mr. Trump’s contention that he did not penetrate her with his penis, i.e., that he did not rape her within the meaning of the Penal Law.
The court went on to reject several of Trump’s affirmative defenses, including his claim that the jury verdict precludes punitive damages in the second trial. Judge Kaplan similarly tossed Trump’s claims to absolute presidential immunity for statements made while in office, an argument he failed to make during the first three years of this case. Only when it became clear that the DOJ’s bid to step into his shoes as defendant was going to fail did Trump assert this immunity, and then claimed he could not have waived it because it was unwaivable.
Judge Kaplan already said this one wasn’t going to fly, and he repeated that this morning:
There is nothing new in the amended complaint that would make Mr. Trump’s presidential immunity defense any more viable or persuasive now than it would have been before. The fact that he has raised it now in an answer does not (1) undo the fact that he waived the defense by failing to raise it in the first three years of litigating this case or (2) change the Court’s decision that his purported defense would have been insufficient in any case. The opportunity to answer an amended complaint is not a free pass to correct past wrongs without any justification or basis for doing so.
Finally, the court had substantial side-eye for Trump’s handwaving about “one or more immunities, including, but not limited to, under the Constitution of the United States.”
“Mr. Trump’s third affirmative defense is stricken to the extent it asserts an absolute presidential immunity defense, and is not stricken in any other respect, if there is any. It is denied in its remaining respects,” Judge Kaplan wrote dryly.
Once again, Trump’s lawyers managed to get the court to call him a rapist on the public docket, and walked away with nothing.
“The January 15th jury trial will be limited to a narrow set of issues and shouldn’t take very long to complete,” Carroll’s lawyer Roberta Kaplan told ATL. “E. Jean Carroll looks forward to obtaining additional compensatory and punitive damages based on the original defamatory statements Donald Trump made in 2019.”
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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