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Trump Continues To Assert 'Technically Not A Rapist' Claim In Carroll Defense

Counterclaim? AYFKRMN?

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Donald Trump yelling

(Photo by Win McNamee/Getty Images)

As Donald Trump’s criminal legal woes get steadily worse, his civil issues are proceeding at a hefty clip. As the second E. Jean Carroll case looms in January, the former president’s lawyers are locked in a conflict with E. Jean Carroll’s counsel about the precedential value of the $5 million jury verdict in her first defamation case.

Carroll originally sued in 2019, after Trump denied her sexual assault allegations against him and accused her of participating in a Democratic hoax. In 2020, Attorney General Bill Barr removed the suit to federal court under the Westfall Act, and since then, the parties have been mired in a dispute over whether Trump’s statements were part of his official presidential duties. In the meantime, Trump continued to repeat the exact statements about Carroll now that he’s out of office, which led the DOJ to withdraw its claim that Trump is entitled to substitute the government as defendant.

Those repetitions formed the basis of Carroll’s second lawsuit in 2022, Carroll II, which included a sexual assault claim under New York’s newly enacted Adult Survivors Act. In May of 2023, a jury found Trump liable for sexual assault and defamation but not rape. And now that the 2019 case, Carroll I, is headed for trial, the parties have vastly different interpretations of the first holding.

Trump and his minions have been busily trying to spin the jury’s finding as some kind of a win. Alan Dershowitz described it as a “Rorschach verdict” since the jury was unable to conclude that Trump successfully penetrated Carroll with his penis, instead finding him “liable on kinda molesting her.” Which is just Dersh being Dersh, and we’re all passed being shocked about it. But then Trump filed a defamation countersuit against Carroll, alleging that the jury’s finding meant it disbelieved Carroll’s statements about Trump and was thus liable.

That counterclaim is still pending, although related motions have prompted some very irate writings from the court noting that the jury clearly believed Carroll when she said that Trump forcibly penetrated her with his fingers, which meets the colloquial definition of rape, as well as the legal definition of rape in several jurisdictions, if not under the New York Penal Laws.

Then yesterday, Trump filed a motion for collateral estoppel seeking to limit the damages allowable in Carroll I based on the jury verdict in Carroll II. He argues that Carroll testified that Trump’s repetition of the original defamatory statements was “equally disparaging and hurtful,” thus her damages must be limited to $1 million, and then reduced to account for the cost of reputation recovery testified to by Carroll’s expert in the first trial — since she only has one reputation to repair, no matter how many times Trump damages it.

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Naturally, Carroll has a very different interpretation of the precedential value of the first verdict. After successfully persuading the court to allow her to amend her complaint to substitute the words “sexual assault” for every instance of the word “rape,” she now moves for summary judgment on the theory that the Carroll II jury’s finding that (1) Trump did attack Carroll in the mid-90s, and (2) his statements denying the attack were defamatory have now disposed of all factual issues in the second trial (first case).

“[T]aking precluded facts in combination with undisputed evidence leaves no doubt that the Carroll I trial need only address the narrow issue of damages,” she argues.

As for Trump’s counterclaim, she is even more blunt:

Donald J. Trump continues to insist that a jury’s finding that he forcibly shoved his fingers, but not his penis into E. Jean Carroll’s vagina somehow exonerates him. But despite his strenuous efforts to distinguish between the crimes of which he’s been accused, a jury determined that he committed sexually abusive conduct that formally qualifies as rape in many jurisdictions and that certainly constitutes rape within the colloquial sense of the term, as this Court has already recognized based on a careful study of the issue. Therefore, the allegedly defamatory statement by Carroll that is the sole focus of Trump’s purported counterclaim is substantially true and cannot support liability as a matter of law.

And finally, as in 2017 when his attempt to shut Stormy Daniels up about their sexual encounter became an issue in the Mueller investigation, Trump’s civil and criminal issues are once again bleeding into each other. Last week we learned that in May, Manhattan District Attorney Alvin Bragg subpoenaed deposition testimony from the Carroll cases for use in the criminal case against Trump for creating false business records about his reimbursement to attorney Michael Cohen for the 2016 Daniels hush money payment. New York Supreme Court Justice Juan Merchan agreed with prosecutors that “certain publicly released excerpts of the deposition demonstrate that Defendant’s testimony included reference to a relevant Access Hollywood tape and address ‘the way in which defendant dealt with allegations of a sexual nature by women in the months leading up to the 2016 presidential election.’” But the state judge deferred to US District Judge Lewis Kaplan to determine if releasing the depositions would violate pending protective agreements.

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Judge Kaplan ordered the parties to respond, and Trump’s attorney Michael Madaio did yesterday in a somewhat puzzling letter stating that the defendant “does not consent to the disclosure of any material considered ‘confidential’ pursuant to the parties’ Confidentiality and Protective Order, but otherwise takes no position with respect to the letter filed by the New York District Attorney’s Office.”

Whatever Madaio meant by this, it appears to have failed to convince the court, which responded in a one-sentence memo endorsement this morning, noting that Carroll’s lawyers “may comply with the people’s trial subpoena.”

And meanwhile, Trump is due to make his first appearance in federal court in DC on the four-count indictment for his conduct contesting the 2020 presidential election.

Reached for comment, the defendant said:

I AM NOW GOING TO WASHINGTON, D.C., TO BE ARRESTED FOR HAVING CHALLENGED A CORRUPT, RIGGED, & STOLEN ELECTION. IT IS A GREAT HONOR, BECAUSE I AM BEING ARRESTED FOR YOU. MAKE AMERICA GREAT AGAIN!!!

Only for YOU, America. All for you.

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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