Trump Lawyers Earn Yet More Judicial Side Eye In E. Jean Carroll Defamation Case

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(Photo by Win McNamee/Getty Images)

At a pre-Thanksgiving hearing in the E. Jean Carroll defamation case against Donald Trump, US District Judge Lewis Kaplan made it clear that the former president’s lawyers Alina Habba and Michael Madaio had exhausted his patience.

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The pair claimed that they hadn’t yet been retained to represent Trump in the soon-to-be-filed second Carroll complaint, in which she planned to add a battery charge under the newly enacted Adult Survivors Act, plus another defamation count for Trump’s comments about her in October. They couldn’t possibly comment, they insisted, before going on to insist that there was no overlap between the two cases, despite the fact that both involve a 1996 rape allegation and Donald Trump’s vulgar denial of it decades later.

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“Your client has known this was coming for months and would be well-advised to decide who is representing him in it,” Judge Kaplan said, testily, promising that he’d have “a lot more to say” after the case was actually filed.

That second case has now hit the docket, with Judge Kaplan agreeing to designate it as related to the first and hold a hearing on December 21 to discuss any additional discovery that will be needed in relation to the two additional counts.

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And still, as of this writing, no attorney has entered an appearance in the second case on behalf of the former president. According to the process server who delivered notice to the former president’s private Mar-a-Lago club/home, the document was accepted by a bald guy of average height who refused to give his name and is recorded as “John Doe.” Perhaps in light of this — and the weeks Trump spent ducking the process server in the first case — Judge Kaplan ordered Habba to make sure her client is formally noticed that he’s being sued again.

If she has not already done so, counsel of record for the defendant in this case shall transmit to the defendant and to any counsel who may have been engaged to represent defendant in Carroll v. Trump, 22-cv-10016 (LAK) ( “Carroll II”), for delivery no later than December 6, 2022, a copy of this Court’s order, dated December 2, 2022, in Carroll II Counsel is directed to do so as an officer of the Court. The Court does not imply that she has been or will be engaged to represent the defendant in Carroll II.

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Translation: Cut the crap.

In the meantime, Carroll’s lawyers Roberta Kaplan and Joshua Matz submitted their brief to the DC Court of Appeals, which was tasked by the Second Circuit with determining as a matter of District law whether Trump was acting in the scope of his employment when he called Carroll and a liar and implied she fabricated her allegations to sell books.

Unsurprisingly, their position is that Trump was not acting as a government agent when he implied that Carroll was too unattractive to rape, not least because traditional arguments about respondeat superior make no sense when the tortfeasor is himself the actual head of the executive branch, which clearly did not control him — as if anyone could.

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Instead, they claim that District precedent imposes a fact-specific analysis of the employee’s purpose in perpetrating the allegedly tortious conduct.

“Trump did not attack Carroll intending to advance any federal interest. Instead, he lied to protect himself from the truth and to destroy Carroll for daring to speak up,” they argue, adding later that “No court has ever held that officials enjoy total civil immunity for willfully slandering private citizens as retribution for revealing private misconduct that they committed before taking office.”

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They also point out that Trump was always a gross pig about women, long before he got elected as leader of the free world. So the argument that the defendant was just doing his job as president, obliged to hold forth on the news of the day, is belied by his comments’ “striking consistency with the personal attacks he has launched for decades (and continues to launch) against women who accuse him of sexual misconduct.”

Moreover, Carroll insists that allowing Trump to skate on the defamation charge because talking smack about her might have some additional political benefit “would collapse a core distinction between the presidential office and its temporary occupant.”

“No President should be heard to argue that he is free to willfully injure and punish a private citizen who revealed that he raped her because inflicting such punishment might incidentally help him politically,” they conclude. “That reasoning dishonors the American Presidency and the rule of law.”

Which is fairly persuasive, but even if the DC Circuit disagrees, Trump was kind enough to repeat those comments just a few weeks ago, long after the Justice Department could colorably argue he was acting in an official capacity.

Karma’s a bitch.

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.

Topics

Courts, Donald Trump, E. Jean Carroll