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Carroll Mocks 'Trump-Branded Form Of Magical Thinking' In His Bid To Knock Down Jury Award

De. Lu. Sion.

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Hillary Clinton And Donald Trump Face Off In First Presidential Debate At Hofstra University

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In May, a federal jury in Manhattan found Donald Trump liable for sexually abusing advice columnist E. Jean Carroll in the mid-90s and then defaming her in October of 2022.  Trump appealed the verdict, and also filed a motion for new trial or remittitur on June 8 on the theory that the $5 million award was excessive in light of the jury’s finding that he sexually abused but did not rape Carroll — something which his minions have desperately attempted to spin as a win.

While this may stand up as a PR strategy, it seems dubious as a basis for legal relief. Would a normal person file a pleading saying essentially, “Hey, the jurors said I didn’t rape the defendant. They said I slammed her up against the wall, grabbed her breasts, ripped down her tights, and jammed my fingers inside her against her will. So clearly I’ve been exonerated, and the jury must have been confused when it awarded her $5 million in damages?”

Perhaps not.

Adding that plaintiff’s expert witness erred by failing to consider all the good things that happened to Carroll after the president called her a liar and implied she was too unattractive to assault is … well, it’s a choice.

That motion was originally filed on June 8, but was bounced by the clerk for some kind of docketing error. On Wednesday, Trump’s lawyers refiled it, prompting an immediate response from Carroll, more or less calling the defendant delusional:

Importantly, on this motion, Trump does not seek to disturb the jury’s verdict on the merits. Rather, he takes issue with the amount of money that the jury awarded Carroll as damages. But Trump’s motion is nothing more than his latest effort to obfuscate the import of the jury’s verdict by engaging in his own particular Trump-branded form of magical thinking. Once again, Trump has the nerve to claim public vindication from the jury in this case when, in fact, the jury determined that he penetrated Carroll’s vagina with his fingers without her consent and then defamed her last year.

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The jury award was based in part on Carroll’s claim that the assault left her unable to have further romantic relationships, something Trump’s lawyers likened to loss of consortium in trying to argue that the jury award was excessive. As Carroll pointed out yesterday, that analogy is totally inapposite, as “under New York law, ‘loss of consortium is a claim specific to married persons’ and represents ‘the marital partners’ interest in the continuance of the marital relationship as it existed at its inception.’”

Similarly, citing cases from the 80s and 90s to argue that the jury award is excessive misses two important points. First, there’s no comparison between a defamatory statement made on local news in the 90s and “one of the loudest voices in the world, in a statement read by millions and millions of people, which described you as a liar, labeled your account of a forcible sexual assault a ‘hoax,’ and accused you of making up a horrific accusation to sell a ‘really crummy book.’”

And second, there’s been a sea change in societal understanding of sexual assault in the past three decades.

Carroll’s case is also different because her trial happened in the present day. While Trump cites cases dating all the way back to 1985 as supposed comparators, our society’s views on sexual assault and the attendant harms have changed significantly in recent years. In fact, this shift is the reason why the New York legislature enacted the Adult Survivors Act (ASA) in the first place, giving Carroll the opportunity to bring her battery claim.

And while Trump seeks to undermine Carroll’s expert witness’s damage estimate, “Trump, for his part, did not call a single witness and did not take the stand himself.” So it’s a bit late to be complaining about testimony which you allowed to go unrebutted at trial.

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In his remittitur motion, Trump argues that the defamation claim must be reduced in light of the jury’s finding that Trump did not manage to penetrate Carroll with his penis, because “the October 2022 statement is barely reprehensible, if at all, because he was defending himself against a false accusation of rape.”

But of course this disregards the jury award was based on its finding that Trump did, indeed, attack Carroll in that dressing room and then lied about it decades later. As Carroll writes:

 Trump’s defense has never been that he forcibly inserted his fingers in Carroll’s vagina without her consent but did not insert his penis, which is what his argument presupposes. He has insisted that nothing, at all, ever happened between him and Carroll. The jury saw through that lie, finding that Carroll’s account was supported by clear and convincing evidence. In other words, that there was “no real substantial doubt” in the jury’s mind that Trump had lied when he denied that anything happened.

Perhaps he’ll have better luck with the Second Circuit. But this motion to toss out the jury verdict seems unlikely to succeed with Judge Kaplan.

In the meantime, the trial judge recently allowed Trump’s post-verdict statements about Carroll to be added to the pending defamation suit over his comments about her in 2019. That case is set to go to trial in early 2024.

Clearly $5 million, plus whatever he’s paying his lawyers, wasn’t enough of a disincentive to keep him from talking shit about Carroll. Guess we’ll find out next year what that magic number is.

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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