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Trump Loses Evidentiary Motion, Bid For Summary Judgment, Mind

Next month's E. Jean Carroll defamation trial is going to be BONKERS.

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Donald Trump yelling

(Photo by Win McNamee/Getty Images)

Donald Trump is unlikely to get indicted this week, but he’s definitely having a rough go in court, as his pre-trial motions in the E. Jean Carroll case continue to get benchslapped by New York federal Judge Lewis Kaplan.

In 2019, the advice columnist accused Trump of raping her in a department store dressing room in the mid-90s. He denied the allegations in a series of vulgar statements calling a her a liar and tool of Democrats trying to destroy him. She sued for defamation in a case commonly referred to as Carroll I. That case is currently on hold pending a certification from the DC Court of Appeals as to whether Trump’s statements fell within the ambit of his official duties, meaning that the government can properly substitute itself as defendant under the Westfall Act and move to dismiss because of sovereign immunity. (The government has not given “permission” to sue it for defamation.)

In the meantime, Trump repeated the defamatory statements in October of 2022. And on Thanksgiving, New York’s Adult Survivors Act came into effect, allowing adult victims of sexual assault a window to sue their alleged abusers for claims which would otherwise be time-barred. Carroll immediately filed a second suit, Carroll II, alleging battery under the ASA and a second defamation charge for the more recent statement. That case is set to go to trial on April 25.

But before Carroll I was taken off the calendar because the promised “expedited” ruling from the DC Court of Appeals has yet to appear, Judge Kaplan ruled on a motion in limine allowing the plaintiff to introduce the testimony of two other women who accused Trump of sexual assault, as well as the infamous Access Hollywood tape. On February 23, the plaintiff moved to introduce that same evidence in Carroll II, as well as to exclude Trump’s proposed rebuttal witness, so-called defamation damages expert Robert Fisher. She also sought to exclude any mention of DNA evidence, since Trump steadfastly refused for years to submit a DNA sample, only offering after the close of discovery to undergo a cheek swab to compare with male genetic material found on the dress Carroll claims to have worn the day of the assault.

On Monday, the court granted this motion more or less in its entirety.

“All of the evidentiary rulings in Carroll I apply here,” Judge Kaplan wrote, before holding that Fisher spending “at most an hour” Googling the plaintiff’s name was not a cognizable basis for his supposed testimony that Carroll experienced a “net benefit” from getting put on blast by the former president.

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It’s generally not great when your proposed expert admits that his opinion is mostly based on vibes.

“There are no data. It’s just — you know, it’s just basic in my assessment based on my background and expertise and experience in the field of communications …” Fisher said in deposition.

Unsurprisingly, Fisher’s testimony will be excluded, as will any mention of the DNA evidence, which the court found would be more prejudicial than probative.

Meanwhile, Trump moved for partial summary judgement back in February on the bizarre theory that his October 2022 statement was a comment on Carroll I, and thus covered by the litigation privilege or the neutral reportage privilege, more commonly used to protect legal bloggers who make snarky comments about ongoing litigation.

The court was singularly unimpressed with both of these theories.

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“Mr. Trump’s argument fails for two reasons,” Judge Kaplan wrote yesterday in an order denying the motion. “First, his October 12 statement is not a ‘report of any judicial proceeding.’ Second, even if his October 12 statement were a report of a judicial proceeding within the meaning of Section 74 of the New York Civil Rights Law, he has not demonstrated that it was a ‘fair and true report of any judicial proceeding.’”

The memorandum opinion went on to describe Trump’s statements as “an amalgamation of Mr. Trump’s personal views and comments on a wide range of subjects, including the legal system of the United States and of New York, this Court, Ms. Carroll and her rape accusation against him, CNN and its journalist Anderson Cooper, and Ms. Carroll’s counsel.”

So, it’s better than an indictment, but still not great. Luckily, he seems to be taking it well.

Screenshot 2023-03-29 at 12.11.29 PM

Perfect. No notes.

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 and appears on the Opening Arguments podcast.

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