Trump Will Testify Tomorrow. Unless He Doesn’t.

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(Photo by Win McNamee/Getty)

Let’s try this again, shall we?

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Tomorrow Donald Trump is supposed to testify in his own defense in the second E. Jean Carroll defamation case. He was originally scheduled to appear Monday, but the trial was delayed after one of the jurors fell ill.

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Trump’s attorney Alina Habba also claimed to feel ill, noting that both her parents were testing positive for covid. But that didn’t stop her from showing up last night in New Hampshire to watch Trump’s lackluster returns trickle in.

If only Trump had reposted more AI generated photos of himself backwards on his knees in church, he’d have routed Nikki Haley for sure!

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NEEDZ MOAR FINGERZ

The former president has been promising for weeks to get on the witness stand and deny that he sexually assaulted the advice columnist in the mid-90s in that department store dressing room. He continues to defame Carroll daily, denying that he ever met her, and making public reference to evidence excluded from the case. (He’s very agitated that he can’t tell jurors Carroll named her cat “Vagina.”)

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Habba has suggested that Trump should be able to testify as to “whether he was acting with hatred or ill will when he provided his answers,” since it’s pertinent to the calculation of punitive damages, as well as to his “mitigation or correction of any statements.” But Carroll’s lawyer Roberta Kaplan calls this “a red herring and a red flag,” urging the court to “ensure that Defendant’s testimony (if any) is properly circumscribed to issues that are relevant and admissible.”

“[D]efense counsel has repeatedly made clear that they do not understand the implications of the Court’s collateral estoppel decision on this issue,” she writes, noting repeated references to excluded defenses by Habba and her partner Michael Madaio during the plaintiff’s case.

Clearly, if Trump and his lawyer try to run that play on the witness stand, they’re going to run right into the buzzsaw that is Judge Lewis Kaplan. Indeed, they seem destined to run into it almost immediately, having renewed in writing their motion mistrial as sanction for a supposed discovery violation Trump’s known about for more than a year, even after a similar motion was rejected from the bench.

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Less clear is how Judge Kaplan will rule on the two issues briefed at his request last week: 1) did Carroll have the obligation to mitigate damages from the defamation; and 2) should her damages for Trump’s defamatory statements be offset by her popularity with #Resistance Twitter after she made the allegations. And the lack of a ruling is going to put the parties in a pickle if and when Trump doesn’t show up to testify tomorrow and they move to closing arguments.

In her opening statement, Habba said, “I need you as a jury to remember this — and this is very important — 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.” Carroll has requested corrective instructions for the panel, but in the absence of a ruling from the court, Habba is certain to repeat the claim in her summation.

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It’s a hot mess. We should all pray — or at least get Chat GPT to dummy up an image of us doing it.

Carroll v. Trump I [Docket via Court Listener]
Carroll v. Trump II [Docket via Court Listener]

Liz Dye lives in Baltimore where she writes the Law and Chaos substack.

Topics

Alina Habba, Courts, Donald Trump, E. Jean Carroll, Lewis Kaplan, Roberta Kaplan