Government

Judge Gives Trump Lawyers A Remedial CivPro Lesson In E. Jean Carroll Defamation Case

Is it 'good' when you're getting the Erie doctrine judgesplained to you in open court?

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(Photo by Spencer Platt/Getty Images)

It was another rough day in court for Trump lawyer Alina Habba, of Pulitzer retraction demand letter fame. After getting beat down last week in New York Supreme Court, she was dispatched yesterday to persuade a federal judge to let her client add a counterclaim under New York’s revised anti-SLAPP law in E. Jean Carroll’s defamation lawsuit.

This case was filed in November of 2019 after the then-president responded to the advice columnist’s allegation that he had raped her by calling her a money chasing liar who was anyway too ugly to rape.

“I’ll say it with great respect: Number one, she’s not my type. Number two, it never happened. It never happened, OK?” he said, with a level of respect that was perhaps not “great.”

Since then, Trump dodged the process server, claimed that New York state court lacked personal jurisdiction over him, and then demanded a stay while he tried to convince a different judge that the president is categorically immune from civil process. In September of 2020, having run out of road in state court and facing the prospect of having to submit DNA to be matched to the stain on Carroll’s dress, Trump got Attorney General Bill Barr to swoop in and invoke the Westfall Act, substituting the federal government as defendant.

Although the court later rejected Trump’s claim that he was doing official president stuff when he insulted Carroll, the removal to federal court was irreversible. Now, having reaped the windfall of a year-long delay, the former president will have to deal with the procedural fallout of his choice. And if the extremely chilly reception his counsel got yesterday is any indication, that means he won’t be able to add the SLAPP-claim under New York’s revised law, which may be federally precluded because it imposes an additional pleading standard on the plaintiff.

“Why isn’t amendment futile?” demanded US District Judge Lewis Kaplan, citing Second Circuit precedent. “Isn’t it true that every court has ruled that this law as amended is inapplicable in federal court?”

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Habba insisted the the cases “go both ways,” attempting to invoke precedent from the Eastern District of New York.

“Last time I looked, the commission on my wall is every bit as good as the commission on the wall of that judge,” Kaplan snapped back, noting that “it’s lovely that you have a minority view to look to among my colleagues — I’d argue it too in your shoes — but it may not be how I rule on this issue.”

“I understand that it’s your position, but I think it would come as a huge surprise to the Second Circuit,” he added, repeating multiple times that the New York law “can’t be applied in federal court, period, exclamation point.”

Judge Kaplan was no more persuaded by Habba’s argument that state law could supersede the Federal Rules of Civil procedure because “this case started in state court” and it would be bad public policy to let parties evade New York SLAPP law by forum shopping.

“That’s of absolutely no relevance. This case is in federal court now,” he said, without mentioning who was responsible for the venue change— an omission Carroll’s attorney Roberta Kaplan remedied when it was her turn at the lectern, noting that it was bloody rich for Donald Trump to complain about forum shopping.

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And the court was positively incensed at the suggestion that Habba’s client could not possibly have been dilatory in raising the SLAPP claims because it was illegal to litigate against a sitting president.

“You can’t litigate while you’re a sitting president? Are you kidding?” roared an incredulous Judge Kaplan.

Habba shoved her partner Michael Madaio out for rebuttal, where he was treated to a rudimentary lecture on the Erie Doctrine after an attempt to distinguish the instant case from the Second Circuit precedent.

And of course, this case could go either way. But when a federal judge tells you, “as would be not surprising to anyone who went to law school, federal courts apply federal law, not the state law,” you’d probably rather have the other guy’s odds.

UPDATE: Looks like Carroll’s lawyers like their odds, too. In a statement provided to ATL, attorney Roberta Kaplan said, “Today the court heard arguments on Donald J. Trump’s latest, meritless effort to delay E. Jean Carroll’s quest to show the world the truth. We are grateful to Judge Kaplan for his respectful consideration of the issues and look forward to proving our case at trial.”

Carroll v. Trump [Docket via Court Listener]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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