Trump Testifies

On Friday, closing arguments will take place in E. Jean Carroll’s defamation case against Donald Trump. On Thursday, Donald Trump briefly took the witness stand in his own defense, responding to just a handful of questions during the direct and cross-examinations. In part, that’s because the Judge narrowly restricted what Trump could testify to. Since the jury in the first Carroll defamation case had already concluded Trump sexually assaulted Carroll and then defamed her, testimony attempting to reopen those issues was prohibited. This jury need only decide the amount of damages Trump caused Carroll and whether Carroll is entitled to punitive damages, meant to punish Trump, in addition to compensatory damages.

I had the good fortune to be in New York today and to get to spend some time at 30 Rock discussing the new developments.

So why did Trump take the witness stand? Most lawyers would have advised him not to, since he had little to offer that could improve his position and lots of potential downside. Trump seemed determined to testify. From his lawyers’ point of view, it probably went better than expected. Trump did not rant, rave, or explode on the witness stand. In part that was because the Judge was quick to jump in and cut Trump off when he went beyond the scope of what was permitted, promptly instructing the jury to ignore it.

But the testimony was largely a non-event. It’s unlikely that it will exert much influence on the jury either way. They heard Trump blurt out his denial of Carroll’s accusation, but they already knew he denied them. Carroll’s lawyers played tapes of Trump saying they weren’t true, including some statements he made while the trial was ongoing. They will use that to argue for punitive damages in an amount high enough to make him stop.

The more important testimony from Trump that the jury saw Thursday was from his April 2023 deposition in the New York Attorney General’s fraud case. At one point, Trump, while discussing the value of his properties, estimated that his brand alone is worth “maybe $10 billion.” When Trump bragged about his billions in assets, he probably wasn’t anticipating that it would be used against him in the defamation case to argue for an enormous punitive damages award. But Carroll’s lawyers can put it to that use, and because deposition testimony is given under oath, there’s nothing Trump can do now to undercut it without exposing himself to the risk of perjury. Sometimes, the chickens really do come home to roost.

When judges talk to juries about awarding punitive damages, they say something along the lines of: You may award punitive damages only if you find that the defendant's conduct that harmed the plaintiff was malicious, oppressive, or in reckless disregard of the plaintiff's rights. Conduct is malicious if it is accompanied by ill will or spite, or if it is for the purpose of injuring the plaintiff. That’s why Trump lawyer Alina Habba asked him whether he had intended to hurt Ms. Carroll with his statements.

“No. I just wanted to defend myself, my family and, frankly, the presidency,” Trump said. Carroll’s lawyer objected, and the Judge instructed the jury that they should ignore everything after the “No.” That “No” will form the basis of Trump’s argument to the jury that he wasn’t acting maliciously against Carroll so they shouldn’t award punitive damages, at least not in an enormous amount. The jury will have to weigh that against the evidence of the entire course of Trump’s conduct and his repeated flurries of social media posts about Carroll, all of which continued even after the first verdict against him. That continued conduct by Trump is significant because it shows that even after a jury found he was defaming and damaging Carroll, and he was on notice that even if he disagreed with Carroll, the law saw it otherwise, he continued to harm her. Carroll’s lawyers can argue to the jury that this is evidence he acted intentionally, knowing he was likely to cause injury. They will argue that warrants a large award of punitive damages.

The amount of any award of punitive damages will be largely up to the jury. Put all the pieces together and Carroll’s lawyers will argue that given Trump’s ongoing conduct, the jury must award damages in an amount sufficient to catch the attention of a man who says he’s worth billions in order to prevent him from continuing to harm Carroll. Recall that a jury in the District of Columbia recently awarded $148 million against Rudy Giuliani in a defamation case. How juries calculate damages in cases like this is unpredictable. Particularly when they are asked to come up with a number for punitives, there is a wide range of possible outcomes. We will have to await their verdict to see where they come out on the numbers.

Today’s biggest lesson, though, is that it’s possible for a judge to ensure Trump follows the rules in court. After Habba told the Judge (with the jury out of the room), that Trump would testify, Trump mouthed off. "I never met the woman. I don't know who the woman is. I wasn't at the trial."

The Judge took that straight on, telling Trump he was interrupting the proceedings, which wasn’t permitted. And he told Habba that before Trump was permitted to take the stand, he wanted “to know everything he's going to say.” Judge Kaplan reiterated the limits he had placed on testimony—Trump couldn’t revisit the issues of whether he had assaulted Carroll or defamed her. And that guidance stuck. Although Trump tried to go beyond what was permitted, the Judge promptly cut him off. And it was all over quickly.

The New York Times reported that as Trump left the courtroom after his testimony, he remarked loudly, “This is not America. Not America. This is not America.” The bad news for the former president is that it is. This is the America where the rule of law still holds and where he too is required to abide by it. I look forward to more of this.

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We’re in this together,

Joyce