Carroll v. Trump: the Appeal

Appellate justices in New York had another opportunity to restore some sanity to the lawfare against Trump last week, and again they failed. This time it was the Federal Appellate Justices on the 2nd Circuit Court of Appeals.

The case involved a civil defamation case brought against Trump by E. Jean Carroll. In 2019, Ms. Carroll wrote a book about an afternoon encounter with Trump that occurred approximately 23 years earlier.

Ms. Carroll said that she and Trump were strangers to each other when they had a chance encounter in a high-end Manhattan department store during the lunch hour. Small talk quickly escalated to flirtatious small talk. This quickly escalated into Mr. Trump accompanying Ms. Carroll into a women’s changing room so that Ms. Carroll could have the benefit of Mr. Trump’s opinion regarding what lingerie to buy. According to Ms. Carroll, Mr. Trump grievously misread the situation because he started to sexually grope her while she was undressing in front of him. She successfully fought him off (quietly), but not until after he penetrated her with a finger. After being physically rebuffed, Mr. Trump left the dressing room and the two never spoke again.

So, three years into Trump’s first term, Ms. Carroll writes the book, and Mr. Trump emphatically says he doesn’t know Ms. Carroll, never met Ms. Carroll, and most certainly has never been in a women’s dressing room with Ms. Carroll. Trump, being Trump, elaborated on his denial by questioning her motives and/or her sanity.

So, she sues for defamation. Case #1 gets bogged down in legal issues involving whether or not Trump’s denials were “presidential actions.” After his first term ended, Trump repeated his denials, so Ms. Carroll filed Case #2, which went to trial first. Ms. Carroll won $5 million in damages, including punitive damages. Then, for reasons unknown, Case #1 goes to trial.

The law does not permit do-overs. You get one verdict and only one verdict. The trial court in Case #1 (the 2nd trial) ruled Trump could not relitigate what did or did not happen in the dressing room. That ruling was unsurprising. What is surprising is that Ms. Carroll got to relitigate her damages. There was only one act of defamation — asserting that her accusation of sexual assault was false. The first jury set her total damages at 5 million dollars. Remember, the first trial was for 2021 denials. Her damages would include everything that harmed her up to the date of the trial. Her damage award would also include the jury’s determination of future damages.

Conducting the second trial made no sense. The appeals court ignored this issue completely.

The jury in the second trial awarded Ms. Carroll 83.3 million dollars.

I had low expectations for appeals in the Carroll case. Personally, I think the correct outcome of the case would be Ms. Carroll and her two corroborating witnesses ending up in jail for perjury. But, 12 New York jurors (in the 1st trial) concluded Ms. Carroll told the truth and Mr. Trump did not. The trial judge (in the 1st trial) could have overruled the jury, but trial courts rarely take such drastic measures. Appellate courts never inject their own personal views regarding witness credibility.

Although jury decisions regarding witness credibility are never reversed on appeal, appellate courts can and do correct jury decisions regarding damages. I expected the verdict would stand on appeal, but also expected the amount awarded in damages would get trimmed.

I was wrong.

The appellate court upheld a $65 million punitive damages award by finding Trump’s statements “egregious.” While Trump questioned Ms. Carroll’s sanity and motives, asking questions is not defamation, egregious or otherwise. Trump’s only definitive statement about Ms. Carroll was that the accusation was untrue. (Saying she was “not his type” is also not defamation.) This is a binary situation. Yes or No. In such a situation, how can a denial be egregious or non-egregious? The appellate court found it egregious because Trump repeated his denial even after a jury ruled against him. That is hogwash. There is no legal obligation to agree with a jury that rules against you. In addition, Trump had no interest in trying to harm Ms Carroll’s reputation. His only interest was to protect his own reputation. Normally, this would preclude punitive damages altogether.

The appellate court upheld an 11-million-dollar award for a “reputation repair” program where Ms. Carroll would hire people to say nice things about her in order to restore her reputation. I hold this truth to be self-evident: the entire concept of a “reputation repair” program is utter bull-pucky.

Finally, the court upheld personal damages of 7.3 million dollars. There is zero discussion in the appellate opinion attempting to articulate any damage suffered by Ms. Carroll that is different from the damage the 1st jury determined to be $5 million. (That 5 million included an amount for punitive damages.) Also, zero discussion of why Ms. Carroll should collect twice for the same damages.

Final note: Not a word about how Ms. Carroll benefited from the controversy. Not a word about all the favorable publicity she received. Not a word about book sales. Not a word about being the unofficial New York City “Woman of the Year” in 2019. Not a word about honors and support from millions.

In other words, not a word about how being called a liar by Donald J. Trump was the best thing that ever happened to Ms. E. Jean Carroll. Getting Trump to call her a liar was exactly what she wanted.

G-Pub

P.S. Cautionary note to Ms. Carroll’s lawyers. I am not saying that, in fact, Ms. Carroll is indeed a lying, scheming, politically motivated, gold digger. I am merely expressing my opinion that it sure looks that way.