The Carroll–Hoffman Lawfare Mess

A s Rich Lowry and I discussed on our podcast yesterday, initial reports were that the Trump Justice Department had opened yet another criminal investigation against a Trump nemesis — this time, the author E. Jean Carroll, who successfully sued Trump to the tune of nearly $90 million for sexual assault and defamation. Later yesterday, the DOJ denied that Carroll is the focus of an ongoing inquiry.

It appears, instead, that prosecutors’ crosshairs are trained on Reid Hoffman, the left-leaning, billionaire founder of LinkedIn.

If that’s true, I don’t know if it’s any better. And I say that as someone whose assessment, upon hearing the first reports, was that a Carroll investigation might be the worst of the Trump lawfare gambits — the president’s impeachable exploitation of the government’s law enforcement apparatus against his political enemies.

Hoffman is a major donor to the Democratic Party and its causes. He also contributed to the campaign of Nikki Haley, who unsuccessfully opposed Trump for the 2024 Republican nomination. Hoffman has apparently drawn the Trump DOJ’s attention because he made financial contributions to Carroll’s lawsuit through his nonprofit organization, American Future Republic.

AFR is based in Chicago, which probably explains why the reported Trump DOJ probe is being run by Andrew Boutros, the Trump-appointed U.S. attorney for the Northern District of Illinois. Acting Attorney General Todd Blanche has recused himself from the investigation. Blanche, along with his then-law firm partner Emil Bove (whom Trump appointed to the Third Circuit appeals court after Bove’s stint in the Trump DOJ) and D. John Sauer (who is now the Trump DOJ’s solicitor general), privately represented Trump in the Carroll appeals. Alina Habba, who is currently a Trump DOJ “senior advisor to the attorney general for U.S. attorneys” (having failed to be confirmed as a district U.S. attorney), also represented Trump as a private lawyer in the second E. Jean Carroll trial.

In the two trials and on appeal, Carroll was represented by Roberta Kaplan, a powerhouse Democratic lawyer who habitually crosses swords with Trump. Kaplan worked for Carroll on a “contingency” arrangement, meaning she would be paid a percentage of any settlement with, or financial verdict against, Trump. Hoffman’s contributions defrayed Kaplan’s costs.

There is, of course, nothing illegal per se about paying another person’s legal fees and/or litigation expenses. A notable example: Trump’s “Save America” political action committee footed legal bills — reportedly, about $44 million — for allies who were drawn into the various Democratic-run congressional and prosecutorial investigations in which he was targeted. Third-party payment arrangements are common, which is unsurprising given that litigation can be prohibitively expensive. (If it weren’t, there’d be much less lawfare, which aims more to addle and punish than successfully prosecute political foes.) Potentially, third-party funding can lead to legal or ethical problems (involving disclosure, conflicts of interest, and potential obstruction); usually, it doesn’t.

In any event, the irony is rich: Trump is using the taxpayer funds that underwrite the Justice Department to conduct investigations of his political foes, now reportedly including an investigation of Hoffman for underwriting a private civil case against Trump — a case that two juries found meritorious, and whose verdicts were sustained by the trial judge over Trump’s objection and then affirmed, twice, by the Second Circuit U.S. Court of Appeals. (The president is currently seeking Supreme Court review; while he has 90 million reasons to do that, I wonder if he’s considered that the justices would probably want to stay 90 million miles away from a case that they need not take and that Trump is turning into a lawfare misadventure.)

The inquiry involving Hoffman apparently traces to Carroll’s 2022 deposition in the case. In it, Carroll testified that she had a contingency-fee arrangement with Roberta Kaplan and that no third party was paying her legal fees. The latter part of that explanation was inaccurate but almost certainly was not willfully false — the high standard for proving perjury beyond a reasonable doubt. That, undoubtedly, is why U.S. Attorney Boutros told the New York Times that his office “has never opened” a criminal probe of Carroll.

In April 2023, just as the first Carroll/Trump trial was about to begin and six months after the deposition testimony, Roberta Kaplan disclosed the inaccuracy to the presiding judge, Lewis Kaplan (no relation). To summarize, during preparation for her testimony, Carroll was reminded that back in 2020, after the lawsuit was filed, her lawyers (Kaplan’s firm) had obtained limited funding to defray litigation expenses from a nonprofit (i.e., Hoffman’s AFR). Carroll herself did not know Hoffman and had no direct contact with the nonprofit. Although she had been told early on that her lawyer had gotten third-party funding, this was probably not of much moment to Carroll: She hadn’t solicited the funds; whatever Hoffman provided did not affect her contingency arrangement with Kaplan; and she and Kaplan never discussed the topic again until she was about to testify at trial, nearly three years later.

This, obviously, is why the unanimous three-judge Second Circuit panel, in upholding the first jury’s verdict against Trump, observed that “Ms. Carroll plausibly represented that she had forgotten about the limited outside funding.” The issue was before the appellate court because Judge Kaplan had precluded Trump’s lawyers from cross-examining Carroll about the third-party funding. The circuit affirmed the trial court’s ruling that the matter of who paid legal expenses was (a) not germane to the trial issues (namely, whether Trump had sexually assaulted and defamed Carroll), and (b) of negligible value in assessing Carroll’s credibility given her lack of involvement in the funding (to say nothing of the fact that Roberta Kaplan, who was principally involved, had volunteered a clarification on the matter with no prompting from Trump’s counsel).

How any of this suggests that Hoffman violated some federal law eludes me. Is the Trump DOJ implying that Hoffman’s contribution, whatever it was, amounted to an in-kind political contribution to the Democrats’ campaigns against Trump, requiring disclosure? That would not just be wrong; it would be tough to square with Trump’s defense (and his ongoing appeal) in the criminal case brought by Manhattan District Attorney Alvin Bragg — in which Trump rightly portrayed as utter nonsense Bragg’s theory that federal campaign law mandated disclosure of Trump’s reimbursement of a hush-money payment to a porn star who credibly alleged she’d had a tryst with Trump.

Or is Trump laying the groundwork to accuse Carroll of perjury? That was the implication of yesterday’s initial reporting, until Boutros denied that Carroll was a subject of his probe. Trump wants Carroll portrayed as a liar, but she won her case against him mainly because he failed to show up and testify at the first trial. Moreover, if he publicly called her a liar again, she’d just bring more defamation claims. Is the DOJ investigation the president’s way of trying to puncture Carroll’s credibility without exposing himself to more multi-million-dollar judgments?

As with the several other lawfare cases, the best thing the president could do is let this one go. So that, of course, is exactly what he won’t do.