MEASURES OF GUILT

Trump’s Crazy E. Jean Carroll Move Might Actually Work

The former president’s decision to sue his rape accuser looked like an insane gambit—but there’s one way it really could give him a leg up.

opinion

On June 27, former President Donald Trump countersued the writer E. Jean Carroll, who successfully sued him for defamation last month.

Specifically, Trump filed his Answer and Counterclaim to Carroll’s Amended Complaint in federal court in New York. In this case, Carroll is seeking damages from Trump for attacking her (while he was president) as a “liar” for claiming that he sexually assaulted her in the Bergdorf Goodman department store in 1996.

In his counterclaim, Trump is seeking damages from Carroll for defaming him by contending that he “raped” her, even though the jury earlier this year found him liable for “sexual assault,” but not “rape.”

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As crazy as this all sounds, I think it is possible that at least part of Trump’s counterclaim will get to a jury.

On May 9, a jury in federal court in New York found Donald Trump was liable in the amount of $5 million for (1) sexually assaulting E. Jean Carroll in 1996 and (2) defaming her in 2022 by falsely denying that he had done so. Trump, however, was found not liable on one count—that he had raped Carroll.

As I noted at the time for The Daily Beast: “The difference between sexual assault and rape under New York law is that sexual assault required the jury to find that Donald Trump forcibly touched E. Jean Carroll’s genitals without consent. Rape required proof that Donald Trump’s penis penetrated E. Jean Carroll’s vagina.”

After the first Carroll v. Trump trial ended, a second case (which had been filed in 2020, two years before the case that was tried earlier this year) remained on the docket of Judge Lewis Kaplan.

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Carroll moved to amend that 2020 complaint in three important ways: (1) where the original 2020 complaint alleged that Trump “raped” Carroll, the amended complaint substituted the term “sexual assault” for rape throughout; (2) where the original 2020 complaint did not demand a specific amount in damages, the amended complaint claimed $10 million in damages; and (3) the amended complaint added additional disparaging remarks made by Trump at a CNN town hall in New Hampshire, which was held immediately after the $5 million verdict was rendered against him.

Trump opposed Carroll’s motion to amend. But on June 13, Judge Kaplan granted Carroll’s motion to amend. On June 15, Judge Kaplan ordered that the trial will start on Jan. 15, 2024.

“Collateral Estoppel” Is a Fancy Way to Say That Both Parties Are Stuck With the Verdict in the First Case

In her reply brief in support of her motion to amend, Carroll noted that the doctrine of “collateral estoppel” would mean, in the 2024 Carroll v. Trump trial, the parties would not be able to retry issues that had already been determined by the jury in the 2023 Carroll trial.

Carroll argued that Trump should be barred from challenging the jury’s verdict that “Trump lied when he denied sexually assaulting Carroll in any way.”

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Even though the term “collateral estoppel” may sound complicated, the concept is simple. Once a jury verdict has been returned on a specific factual issue, the jury’s verdict will be binding on both parties in further litigation between them.

That means Trump is stuck with the jury’s verdict that he sexually assaulted Carroll in 1996, and defamed her when he denied it. At the same time, Carroll is stuck with the jury’s verdict that Trump did not “rape” her in 1996.

In his counterclaim, Trump alleges that Carroll defamed him by calling him a rapist, both in her original complaint and in the aftermath of the 2023 verdict.

E. Jean Carroll now has 20 days to respond to Trump’s counterclaim. She may move to dismiss or answer the counterclaim. At some point, I would expect Judge Kaplan to be asked to rule whether Trump’s counterclaim can go to the jury. There are some obvious deficiencies in Trump’s counterclaim, such as the failure to make particularized allegations to support his claim for damages.

However, when a person is falsely accused of a crime, that is termed “defamation per se,” and the law presumes that the plaintiff has suffered damage.

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Ordinarily, Carroll’s claims that Trump raped her would be protected by the “actual malice” standard, which I previously explained means that a public figure who sues for defamation has to prove that “there was clear and convincing evidence that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Given her testimony at the first trial, in which she said she believed that Trump put his penis inside of her after first sexually assaulting her with his fingers, but she could not actually see it, I expect that Trump will not be able to clear that bar with regard to Carroll’s statements in 2020.

However, once the jury in the first trial returned its verdict that Trump was not liable for rape, Carroll’s statements that Trump had, in fact, raped her (not merely sexually assaulted her with his fingers, as the jury found) could be found by a jury to be defamation.

As unlikely as it might have seemed a month ago, it’s possible Donald Trump’s counterclaim against E. Jean Carroll could give him substantial leverage, both in negotiations with Carroll and in the minds of the jury in the second trial.

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Mitchell Epner

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