On the eve of the first E. Jean Carroll defamation trial, Donald Trump wandered off a golf course in Ireland to inform reporters that he would soon be returning to America to testify in his own defense.
“I have to go back for a woman who’s made a false allegation about me. And I have a judge that’s extremely hostile,” he vowed. “And I’m going to go back and confront this woman.”
Back in New York, his lawyer Joe Tacopina sweated bullets.
“Mike, I just told you he is not,” he said testily in response to a question by Carroll’s attorney Michael Ferrara. He urged the court to take his word as an officer of the court that his client would not be appearing, and indeed Tacopina made damn sure that Trump never showed his face during the case. As an experienced trial lawyer, he knew that the only thing more repellant to jurors than a video of the former president bragging that “when you’re a star, they let you” grab women by the genitals, “unfortunately or fortunately,” would be a live performance.
Sadly Tacopina will not be back for an encore in the second Carroll trial, which involves Trump’s original defamatory statements in 2019 when Carroll first accused him of sexual assault. Trump recently trashed his lawyer on Truth Social, blaming Tacopina for barring him from the courtroom, where he’d have wowed the jurors with his magnetic personality and animal charm.
“I was asked by my lawyer not to attend—’It was beneath me, and they have no case’” he groused. “That was not good advice.”
The honor of defending Trump in the second case falls to Michael Madaio after his partner Alina Habba wandered off to shout inanities on TV. The defense has been somewhat shambolic, with Madaio putting forward the same expert witness who’d been tossed in the first case, affecting shock and amazement when that witness got booted a second time, and then unsuccessfully seeking to substitute another expert on the eve of trial. Most recently he tried to get Trump’s damaging deposition testimony excluded on the theory that Trump might show up next week to speak in his own defense.
That effort was also a failure.
The Court overrules Mr. Trump’s broad objection under Federal Rule of Civil Procedure 32 to the use of any portion of his deposition transcript. His contention that its use would be improper because he is listed as a possible witness is utterly frivolous. Rule 32(a)(3) provides that an “adverse party may use for any purpose the deposition of a party,” whether they are available to testify live or not. Thus, Ms. Carroll will be permitted to play her otherwise admissible deposition designations at trial even were Mr. Trump to testify.
Madaio has, however, managed to get Judge Lewis Kaplan to call his client a rapist in multiple public filings. So much winning!
Carroll’s counsel have fared much better. Yesterday the court issued another devastating ruling barring Trump from introducing evidence about litigation funding or Trump’s post-discovery offer to undergo the DNA testing he’d avoided for three straight years. It also blocked Trump’s plan to argue that Carroll’s damages arose not from his defamatory statements, but “that it was Plaintiff coming forward with allegations against Defendant, and not Defendant’s denial, that caused her any damages (to the extent there is any damage).”
“As an initial matter, and assuming arguendo that plaintiff made such claims, defendant’s suggestion that such claims might have resulted in greater media attention than otherwise would have occurred and that any such increase would have benefitted plaintiff’s reputation ultimately is purely speculative,” the court noted dryly.
The section headed “Defendant’s Testimony and Behavior” was even more disastrous. Noting that the first jury found him liable for sexual abuse and defamation and that he’d already granted summary judgment as to the issue in this case, Judge Kaplan put the kibosh on Trump’s plan to hop on the witness stand and tell the jurors that the assault never happened and Carroll is a liar.
Mr. Trump and his counsel are precluded, in the presence of the jury, from claiming that Mr. Trump did not sexually abuse (“rape”) Ms. Carroll; that he did not make his June 21 and 22, 2019 statements concerning Ms. Carroll with actual malice in the constitutional sense of that term; or that Ms. Carroll fabricated her account, whether in consequence of a political agenda, financial interests, mental illness, or otherwise. Mr. Trump and his counsel are precluded also from offering testimony or advancing any argument inconsistent with the Court’s collateral estoppel decision determining that Mr. Trump, with constitutional malice, lied about sexually assaulting Ms.
Carroll. This includes any evidence or argument concerning whether Mr. Trump believed Ms. Carroll’s allegations or questioned her motives, as these issues will not be before the jury in the present case.
And for good measure, the court admitted the infamous “Access Hollywood” tape as “a relevant window into how Mr. Trump views women that he allegedly has assaulted – including women like Ms. Carroll – and that it therefore is relevant under Rule 401 as tending to prove his common law malice, which is essential to the punitive damages claim.”
The trial begins Tuesday. Let’s see if Trump tries the shit he pulled with Justice Engoron in New York Supreme Court in front of a federal judge down the block, or if he takes the advice of his prior competent counsel and stays on the golf course.
Carroll v. Trump I [Docket via Court Listener]
Carroll v. Trump II [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast..