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(Photo by David Becker/Getty Images)
What a difference a lawyer makes!
After three years of shambolic chaos engineered by his sparklemagic counsel Alina Habba, Donald Trump has suddenly started making rational — ish! — arguments in the E. Jean Carroll defamation case. Too bad it’s coming a month after the jury delivered its $83 million verdict.
Former Missouri solicitor general John Sauer filed a motion for a new trial, along with a motion for judgment as a matter of law. The gist of the argument is that Judge Lewis Kaplan bollixed up the common law malice standard under New York law, both in his jury instruction and, relatedly, by refusing to let the defendant testify about his motivation for defaming Carroll.
The common-law malice requirement that the allegedly defamatory statement was “solely motivated by a desire to injure plaintiff,” as “the one and only cause for the publication,” id., is well-established in New York law for defamation cases. New York appellate courts, including the Court of Appeals and the Second Circuit, have repeatedly affirmed that, to establish common law malice, the plaintiff has the “burden of proving that malice was the one and only cause for the publication.” Stukuls v. State, 42 N.Y.2d 272, 282 (1977) (emphasis added); id. at 281 (requiring a showing that the statement was made “solely from spite or ill will”) (emphasis added) (quoting Restatement (Second) of Torts § 603 cmt. A);
Sauer argues that state law requires a finding of common law malice to support a punitive damage award, and thus it was error for the court to bar Trump from testifying that he attacked Carroll because he “just wanted to defend myself, my family, and frankly, the presidency.”
In fact, he did testify to exactly that, but the court struck it from the record.
“Indeed, it is virtually unthinkable that President Trump’s ‘sole’ and ‘one and only’ motive for making the challenged statements was that he simply wanted to harm Plaintiff—as opposed to wanting to defend his reputation, protect his family, and defend his Presidency.”
The counter to this is that Trump was perfectly free to testify however he wished in the first Carroll case, and he chose not to. He subsequently trashed his former trial counsel Joseph Tacopina, who would have crawled through broken glass to keep his client out of the courtroom.
The first jury found that the statements were defamatory and made with both actual and common law malice; and Judge Kaplan issued summary judgment in the second case finding that the defamatory statements at issue were substantially identical, and thus Trump was estopped from denying that they were defamatory in the second trial.
As for the argument that the jurors would have been wowed by Trump’s testimony if he’d only been able to tell them that he attacked Carroll to protect the country — and kept doing it for three years even when he was out of office, calling her a pervert and a liar on social media even during the trial itself — well, it’s an argument. As is the claim that a 3.6:1 ratio of punitive to compensatory damages is contrary to New York law.
Maybe it’s not a great argument, and maybe it’s doomed to fail. But it’s not totally batshit crazy so … congrats on the massive improvement?
Carroll v. Trump I [Docket via Court Listener]
Carroll v. Trump II [Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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