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(Photo by Win McNamee/Getty Images)
Last night the pundits were preparing for Trump to testify or not testify at the second E. Jean Carroll defamation trial. (It me!)
Would he actually show up as promised and “explain I don’t know who the hell she is” on the witness stand, daring Judge Lewis Kaplan to either throw him out of court or hold him in contempt? Would he ghost the court, vowing to appear and then backing out at the last minute, the way he did in the first Carroll case and the civil fraud trial?
As it turns out, there was another possibility we had not thought of.
This morning, after a juror called out sick, Judge Kaplan continued the trial. Trump’s sparklemagic lawyer Alina Habba also claimed to have been fighting a fever all weekend, representing to the court that at least one of her parents had tested positive for COVID-19. Naturally, she appeared unmasked, standing next to the former president, daring the universe and karma to do the funniest thing ever.
Habba requested that the trial resume Wednesday, noting that the New Hampshire primary is tomorrow. And while the judge refused to rule from the bench, it seems unlikely that the case will resume for at least a couple days.
Trump spent the morning on a social media bender. After promising this weekend that he’ll “say it again, a thousand times,” he’s posted dozens of attacks on Carroll, attempting to slut-shame the 80-year-old sexual assault victim by cherrypicking salacious quotes from her advice column to prove … that a woman who talks about sex in public can’t be raped?
Over the weekend, the parties filed a pile of motions. Trump renewed his motion for a mistrial on the theory that Carroll spoliated evidence by deleting death threats. He also noticed an appeal to the Second Circuit of Judge Kaplan’s denial of a request for mistrial from the bench.
Describing Habba’s oral motion as a “flagrant departure from appropriate courtroom decorum,” Carroll responded that: (1) Trump cannot seek discovery sanctions long after discovery has closed; (2) Trump has known about the deleted emails for a year and cannot be permitted to store them up as a GOTCHA during trial; and (3) Carroll did not delete emails after the commencement of litigation, as Habba implied in front of the jury.
Last Wednesday, the court instructed the parties to brief two issues with respect to damages. First, Habba declared in her opening that “Ms. Carroll had a duty to minimize the effect of the statements, not exacerbate them, as I will show she did when she ignored that duty and did the exact opposite and still does today.” Judge Kaplan shoved the parties in the direction of Norske Ameriekalinje v. Sun Printing Press Assn., a 1919 New York Court of Appeals case which suggested that she had no such duty, as Carroll’s counsel Roberta Kaplan pointed out. The attorney also noted that Trump had failed to assert mitigation as a defense in his answer to the complaint or in any of the pretrial documents, and so it was waived.
Habba responded by selectively quoting helpful portions of Norske and bizarrely gesturing in the direction of New York Civil Rights Law 78, which provides that “In an action for libel or slander the defendant may prove mitigating circumstances, including the sources of his information and the grounds for his belief,” and that “matter tending only to mitigate or reduce damages is a partial defense and may be set forth in the answer.” Habba failed to explain how the defendant’s right to assert a mitigation defense last summer in his answer confers an obligation on the plaintiff to mitigate her damages.
The court also ordered briefing on Habba’s claims that the damages award must be offset by all the good things that happened when Trump defamed her. Shouldn’t you recover less in damages for being defamed because you get to be a hero of #Resistance Twitter?
Unsurprisingly, Carroll says no:
The question here is not whether Ms. Carroll may have incurred a reputational benefit from coming forward to reveal the truth that Mr. Trump sexually assaulted her. It is whether Mr. Trump’s own defamatory statements resulted in some sort of reputational benefit to Ms. Carroll—and, if so, whether he can offset damages on that basis. The answer to that question is clear. As a matter of precedent and equity, the law does not authorize Mr. Trump to defame Ms. Carroll but then minimize the ensuing damages because he involuntarily inflicted a “benefit” on her in the form of support from parts of the community who find his statements abhorrent (or who are otherwise predisposed to disbelieve his attacks). Ms. Carroll never asked for any “benefit” that Mr. Trump may think that he has forced upon her through his defamatory attacks. If anything, it is offensive for him to persist in his assertions that she should be grateful to him for defaming her.
Looks like the Judge Kaplan will have some extra time today to address these motions. In the meantime, this shitshow debacle featured in this week’s SNL’s cold open.
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