The Week Ahead

Sunday, October 16, 2022

I’m going to stop saying it’s going to be another action-packed week because it seems like there isn’t any other kind these days. Let’s get to it:

Trump Deposition in the E. Jean Carroll Case

Trump will be deposed on Wednesday, October 19, by ace lawyer Roberta Kaplan, in the defamation lawsuit brought against Trump by E. Jean Carroll. Carroll is the former Elle advice columnist (and full disclosure, dear friend) who sued Trump after he disparaged her following her accusation that he raped her in a Bergdorf Goodman dressing room in the 1990’s. Trump responded by denying the rape, said she wasn’t his “type,” and accused her of lying to sell her book, Hideous Men. Carroll still has the dress she was wearing that day.

DOJ continues to represent Trump, which is disgusting, but likely motivated because of concerns that not doing so could set a bad precedent for future cases where it really wants to be able to represent government employees who get sued. There’s another legal issue percolating through the case, whether Trump was acting within the scope of his duties as an employee when he made the comments is still under consideration by the court. The Second Circuit Court of Appeals has referred that issue to the DC Court for consideration. If they find Trump was acting within the scope of his employment duties, that’s likely the end of the case, but Trump’s argument, which in part says it was his job to respond to questions like the ones he answered here, seems weak compared to the principle that a president shouldn’t be able to use the power of his office to defame a private citizen and walk away, unaccountable. We don’t know what the time frame is for a decision on the legal issue.

In the meantime, the trial judge (whose last name is also Kaplan, which is confusing although he isn’t kin to Carroll’s lawyer) is permitting the deposition to proceed, noting it’s essentially the last step necessary in discovery before the case goes to trial. The judge also noted that the deposition could be useful when Carroll’s lawyer files a new lawsuit under New York’s revival law, the Adult Survivors Act, next month. The new law allows victims to sue for damages for rape despite the expiration of the statute of limitations. More incoming for Trump.

The deposition itself is certain to be interesting. Sadly, we’re unlikely to see the transcript until motions for summary judgment are filed in advance of trial (which could take place as early as next February). Trump’s lawyers are certain to designate most, if not all, of the transcript confidential, which means it will remain under seal until it’s used in pleadings or at trial.

So, I’ll be paying attention to the case docket on Wednesday to see if we can get a whisper of the proceedings if any disputes between the parties take place. By disputes between the parties, I mean Trump refusing to answer questions or his lawyers trying to shut down the proceedings completely. In an earlier deposition in the case, Trump’s lawyers tried to suspend the deposition of Melania Trump’s press secretary Stephanie Grisham because she was taking prescription medication. That’s the kind of thing that necessitates back and forth between the lawyers and the judge, and we *may* see some spillover from that sort of thing on the docket, if it happens again. One suspects that Trump’s lawyers will be fairly desperate to shut things down. In civil depositions, parties are supposed to answer questions, despite any objections, which can be noted and then litigated before evidence is admitted at trial. That may prove particularly challenging for the former president, given the nature of the allegations that led to the defamation and the absence of any real 5th amendment privilege, since the statute of limitations for a rape prosecution has passed.

NY AG Seeks an Injunction Against Trump

New York’s Attorney General, Leticia James, filed a request for an injunction against the Trump Organization after representatives created a new company with the same name in Delaware six days before James' office brought her civil suit against the company. Then, the company filed paperwork to register Trump Organization II LLC in New York on September 21, as James was filing her civil action. That’s the case that, while civil, could become a virtual civil death penalty for Trump’s real estate business.

If you think this sounds like Trump was begging James to take action against him, he was, and she did. This sort of corporate shenanigans raise the specter of an effort to move the companies’ resources out of James’ reach. The injunction she filed for last Thursday is an effort to prevent that from happening.

“Our investigation uncovered the fact that Donald Trump and the Trump Organization engaged in significant fraud to inflate his personal net worth by billions of dollars to illegally enrich himself and cheat the system,” James said in a statement. “Since we filed this sweeping lawsuit last month, Donald Trump and the Trump Organization have continued those same fraudulent practices and taken measures to evade responsibility. Today, we are seeking an immediate stop to these actions because Mr. Trump should not get to play by different rules.”

The Trump organization must respond to James’ motion by Monday, the 24th. A hearing will be held on Halloween (no word on whether costumes will be worn). James will ask the court to prevent Trump from transferring assets from the Organization to any other entities. Although his lawyers told James that won’t happen, they provided no specifics. Granting the injunction in its entirety isn’t a certainty here, but James is entitled to some form of guarantee Trump won’t siphon off his resources because she can get her final judgment.

As you know from our earlier encounters with injunctions in other cases, a party that requests one must show a strong likelihood it will succeed on the merits in its lawsuit. To do so, one piece of evidence James pointed to was Trump’s repeated assertion of his 5th Amendment right against self-incrimination when he was deposed in the case last summer. It’s nice to see the chickens coming home to roost. Sure, you can use the 5th Amendment to avoid answering questions in a case, criminal or civil, if there is a possibility truthful answers could subject you to prosecution. But in a civil case, like this one, an adverse inference can be drawn against a defendant who ducks the questions. James will use Trump’s failure to prosecute her case, and hopefully, win an injunction here.

NY v. Trump Organization, 01473-2021, New York State Supreme Court (Manhattan)

The criminal trial of the Trump Organization is scheduled to start on October 24, a week from today (Monday). Trump would undoubtedly like to find a way to delay it. Will there be any last-minute skirmishes? The judge has already ruled the case will start as scheduled, indicating he wouldn’t tolerate any efforts to delay, but it’s worth keeping an eye on things this week.

The former president is not a defendant in this one, but his name is sure to be invoked as the Manhattan DA prosecutes charges that involve tax avoidance and unreported perks given to certain employees. That includes Trump’s former CFO Allen Weisselberg, who pled guilty in August to 15 counts including grand larceny, tax fraud, and falsifying business records. According to the plea agreement, Weisselberg evaded paying taxes on a total of $1.76 million in unreported income, hardly a paltry sum.

Of course, we’ve heard over the years that nothing happens at Trump Organization without the approval of Donald Trump himself. That could get interesting since Weisselberg’s plea deal includes an agreement he will testify against the Organization. At the time of the plea, Manhattan DA Alvin Bragg said he expected Weisselberg to provide "invaluable" testimony against Trump’s business. But Weisselberg refused to testify against Trump to spare himself criminal prosecution, so the value of his testimony, at least in that direction, remains to be seen.

Will the trial produce an October surprise? It will be ongoing as early voting commences and could continue throughout the midterms.

And More

Democratic election law lawyer Marc Elias warned his followers on Twitter to expect more voting rights litigation this week.

Marc E. Elias @marceelias

Expect more litigation next week. democracydocket.com/me-subscribe/

The House will formally serve the January 6 committee’s subpoena for documents and testimony on Trump after a floor vote takes place. Then the committee gets to work on its final report and whatever else it has up its sleeve.

And early voting in Georgia starts on Monday the 17th, where there are some important races, like the one to return Raphael Warnock to the Senate and the one to send Stacey Abrams to the Governor’s mansion. If you’ve got friends in Georgia, remind them to vote.

We’re in this together,

Joyce