Standing Up to the Bully, Again

Last night, I speculated that we might learn whether E. Jean Carroll intended to sue Trump, again, for defaming her during CNN’s recent town hall, sometime this week. It didn’t take long.

Today, Carroll’s lawyer, Roberta Kaplan, wrote to advise the judge in her remaining case in New York, referred to as Carroll I, that “Carroll has moved to amend her complaint in the present action… The proposed amendment also adds allegations concerning the verdict in Carroll II and Trump’s public response to that verdict, which involved repeating on CNN the statements the Carroll II jury found to be defamatory, allegations that we believe are now directly relevant to the issue of punitive damages on the defamation claim in Carroll I… The nature of Carroll’s underlying claim for defamation against Trump based on his 2019 statements, however, remains the same.” 

Carroll I, the case involving Trump’s defamation of Carroll while he was president is still pending. It was Carroll II, the case involving his more recent 2022 defamation of her and a claim for sexual assault under New York’s new law for adult survivors, that proceeded to trial earlier this month.

The new filing asks the court to permit Carroll to update Carroll I to include the fact of the verdict against Trump, along with his comments about her on CNN and his social media posts on Truth Social. If the judge agrees, Carroll could use those allegations to ask the judge to resolve the matter in her favor without a trial or she could offer evidence to support the allegations if the case proceeds to trial. They would also be available to support a new damages claim.

In the CNN town hall, Trump called Carroll’s allegation that he sexually assaulted her “fake” and a “made-up story.” He repeated his earlier claim that he had never met Carroll, despite a photograph that was introduced into evidence at the trial showing them in conversation together. Trump called Carroll a “wack job” and said the civil trial was “a rigged deal.”

Here are some of the proposed additions Carroll wants to make to her complaint. It’s likely that the judge will grant her motion.

These new claims could cost Trump even more money than the $5 million he already owes Carroll. That’s because a jury could very easily consider Trump’s conduct here to be outrageous—he defamed her again just one day after the first jury rendered its verdict against him. That sort of flagrant abuse could support a substantial punitive damages award to punish Trump, which is what punitive damages are meant to do. They punish a defendant who has acted maliciously and discourage others from doing the same. A jury could easily award Carroll damages in an amount that exceeds what she got in the first case.

Trump opposes Carroll’s motion to amend the complaint. In the letter to the court advising of the reasoning behind the amendments, Carroll’s lawyer tells the judge that Trump “threatened to file a separate case against E. Jean Carroll in retaliation and possibly to seek sanctions” when he was asked for his views on the motion and agreement on a briefing schedule to consider the issues.

This may be one reason Carroll’s lawyers opted to add allegations to the existing complaint rather than file a separate lawsuit in New Hampshire, where the CNN town hall took place. They keep the same judge who has been dealing with these defamation cases from the start. Judge Lewis Kaplan (no relation to Carroll’s lawyer) has previously shown a willingness to block Trump’s efforts to subvert the legal system. When Trump complained from his golf course in Ireland that he had to cut his trip short to appear in court, despite not attending a day of trial and previously advising the court that he would not testify, Judge Kaplan gave Trump an extension of time to reconsider whether he wanted to testify, with a hard deadline. The deadline passed without any communication from Trump to the judge, and the case proceeded to a jury verdict. It is unlikely that the judge will be impressed with any effort by Trump to intimidate or frighten Carroll.

Before the case can proceed, the issue I discussed last night, the Westfall issue involving Trump’s status as a federal employee, will need to be resolved. The D.C. courts have advised that the issue of whether Trump is protected from this suit, which involves conduct while he was president, is an issue for the jury. But Carroll’s lawyer suggests the government could withdraw its initial request to substitute itself for Trump in the lawsuit. Although I believe DOJ’s decision in this regard was wrong (I wrote about it here in June 2021 when they made that decision), it would be difficult for them to reverse course at this late date without looking political. Carroll’s lawyer argues that would be warranted based on the verdict against Trump. DOJ has requested that the court rule on the motion to amend the complaint before it states its position, because it needs to know what facts are included in the amended complaint before it can formulate its position.

There is also a larger context for adding and allegation about the verdict Carroll obtained against Trump in the Carroll II trial to the existing complaint in Carroll I. Carroll’s lawyer argues that because the defamation alleged in Carroll I is “materially identical” to the allegations the jury previously found against Trump on, the first jury’s verdict resolves the facts of the case, leaving only damages to be resolved, under the legal doctrine of res judicata. The judge will have to determine whether he agrees that the defamation in the two cases is so similar that there are no additional fact issues for a jury to decide—Carroll’s lawyer notes that even if the judge disagrees with her assessment and finds that there are some outstanding issues, they could be resolved in a “streamlined” fashion.

It would be easier and safer for Carroll to take her earlier win and remove herself from the public spotlight. But she is not a woman to take the easy way out. Bullies don’t go away until someone stands up to them, and sometimes that means standing up to them again and again. Carroll’s lawyer got straight to the point in an interview on Monday: “It makes a mockery of the jury verdict and our justice system if [Trump] can just keep on repeating the same defamatory statements over and over again.” Let’s hope others with the opportunity to stand up to the bully will display as much courage as E. Jean Carroll has.

We’re in this together,

Joyce