Trump’s Prospects Are Dim in the E. Jean Carroll Case

A federal district court in Manhattan has ordered President Trump to pay the $5 million judgment (plus interest) that E. Jean Carroll won against him in a 2023 trial, at which a jury found him liable for sexual abuse and defamation.

Trump had been permitted to delay paying the judgment while he appealed to the higher courts. As I explained last week, however, the Supreme Court declined to review the case toward the end of its term. That was after the federal Court of Appeals for the Second Circuit rejected Trump’s appeals of both the verdict and the denial of his immunity claim by Judge Lewis Kaplan (a Clinton appointee in the Southern District of New York, who presided over the case).

Carroll, of course, is a journalist who alleges that Trump forced himself on her in the mid-Nineties (she doesn’t recall the date) in a changing room at Bergdorf Goodman, a luxury department store in Midtown Manhattan. She raised four civil claims: one of sexual assault and three of defamation. Trump’s immunity claim was relevant only to the one defamation allegation, which was said to have occurred while he was in office (during his first term, in 2019, shortly after Carroll published her sexual assault claim in a memoir). Carroll’s other three claims undeniably involved allegations of private conduct. (Trump was not in office during any of them.)

The remoteness of the conduct alleged from the presidency is probably why Trump’s immunity claim was, quite clearly, an afterthought. He raised it neither in his initial 2020 answer to Carroll’s New York State complaint nor in the pleading he filed in 2022 when the case was moved to federal court. (As we’ll see, these defaults are important.) Even with respect to the defamation claim stemming from Trump’s remarks about Carroll during his first term, it is a dubious proposition that a president’s public denial of an allegation of private misconduct that allegedly occurred two decades before he was elected constituted an executive official act that warrants immunity from civil suit. (Still, as I detailed at the time, judicial hand-wringing caused substantial delay as this question wended its way through three courts. It is part of the reason there were two trials instead of one; the other reason is that Trump defamed Carroll again after the verdict in the first trial.)

After the Supreme Court declined to hear the case at the end of its term (making the $5 million judgment final), Trump asked to continue to delay payment while he asks the Supreme Court to rehear the case. For the reasons I outlined last week, the chances are nil that the justices will agree to reconsider their denial of certiorari. And since the matter is hardly an emergency at this point, it is unlikely they’d even address Trump’s application until the new term begins in October. Assuming that Judge Kaplan’s order holds, Carroll will have been paid the $5 million by then.

Still, that will not end the case. As noted above, complications caused by the president’s immunity claim led to the matter’s bifurcation: the first trial, involving the sexual assault allegation and one of the defamation claims, and the second trial in 2024, involving the two remaining defamation claims. The latter is the more financially consequential to Trump, since the verdict against him was $83.3 million. As part of his request that the Court reconsider its refusal to consider the first Carroll verdict, Trump is stressing that it should, in conjunction, entertain his appeal of the second Carroll verdict. The Court of Appeals for the Second Circuit rejected that appeal last year.

Regarding the second trial, I thought there were two weighty appellate issues — meaning not that Trump should necessarily prevail but that he had claims worthy of consideration. In the end, the Second Circuit found no merit in Trump’s claims. Regardless of my qualms, I doubt the Supreme Court wants within a million miles of Carroll v. Trump. The first colorable issue involves Judge Kaplan’s precluding Trump from disputing that he had sexually assaulted Carroll. Applying long-standing issue preclusion principles, Kaplan found that this issue had been resolved with finality against Trump in the first trial.

I believe Kaplan should have allowed testimony on that issue in light of the obvious importance of the sexual battery allegation to the second jury’s consideration of whether Carroll was defamed (by Trump’s statements at issue in the second trial) and, if so, how much she should be awarded in damages. That said, as Kaplan and the Second Circuit rightly reasoned, Trump had a full and fair opportunity to mount a vigorous defense to the assault allegation in the first trial. It was he who chose not to show up and not to provide the jury with his competing version of events. Hence, it is not unreasonable for the Second Circuit to have affirmed Kaplan’s ruling.

Given the lower courts’ careful consideration of the issue preclusion jurisprudence, I see no reason why the Supreme Court would second-guess them. From the Court’s standpoint, Trump sabotaged his own legal interests, subordinating them to his political calculations (regarding how his attendance at the trial would have affected the 2024 presidential campaign). I can’t imagine the justices taking this case when they can easily avoid it, given that (1) the unsavory matter has already generated voluminous litigation, including two trials, extensive immunity proceedings, and three appeals; (2) it is essentially a private matter with sparse ramifications for the office of the presidency; and (3) Trump is sure to foment more consequential controversies that the Court will be unable to avoid, even though they will enmesh the justices in hot political debates.

Trump’s other colorable claim, in my view, is that the $83.3 million verdict was excessive. The first jury found in Carroll’s favor on the sexual assault allegation. Notwithstanding that, Trump continues to emphasize the jurors’ conclusion that rape was not sufficiently proved. This has never been the coup he frames it to be. To repeat what I’ve previously explained: The lack of a rape finding was undoubtedly based on Carroll’s own testimony that, given the awkward position into which she said Trump had forced her, she wasn’t certain whether he had penetrated her with his sex organ or a finger (hesitation on her part that I suspect enhanced her credibility with the jury). The jury unanimously found that Trump had committed sexual battery, so it clearly credited Carroll’s testimony (despite Trump’s insistence to the contrary). And as Judge Kaplan pointed out, penetration of any kind would technically have qualified as rape under New York law, so assuming that the jurors believed Carroll (as the verdict attests that they did), the battery she described was the functional equivalent of rape, even if the jury chose to find the ostensibly lesser offense of battery.

This, by the way, is why there was no legal merit in Trump’s claim that ABC’s George Stephanopoulos had defamed him by describing the jury’s finding as rape. It was certainly sleazy of Stephanopoulos, a longtime Democratic operative who poses as a straight news commentator, but he explicitly relied on Kaplan’s opinion. The decision by Disney, ABC’s parent, to pay Trump a $16 million settlement appears to have been fueled by other considerations: It’s a paltry sum compared with what drawn-out litigation would have cost, the facts do not flatter Stephanopoulos, and ABC News did not want to give the Supreme Court an opportunity to revisit New York Times v. Sullivan, the seminal 1964 defamation ruling that lavishly shields the media.

With all that said, it is also true that the jury awarded Carroll only $2 million in damages on the assault claim. Even allowing that Carroll was an effective witness, and that her case was immensely boosted by Kaplan’s admission of other alleged instances of Trump’s sexual aggressiveness, the blunt fact is that her claim was not strong. It was very stale and uncorroborated by forensic evidence or even other eyewitnesses who could place Trump and Carroll in the vicinity of Bergdorf Goodman at the time. Most of the $5 million total verdict was attributable to the defamation claim. Given the mere $2 million award on the core of the case, sexual assault, the second jury’s finding that Trump had damaged Carroll to the astronomical extent of $83.3 million by defaming her, including $65 million in punitive damages, seems excessive — especially when, again, Trump was not permitted to claim that he hadn’t sexually assaulted Carroll.

And yet the Second Circuit found that the jury’s damages finding was rational given evidence that (1) Carroll’s income dried up after Trump’s assertions about her; (2) the vast reach of Trump’s statements meant that a public reputation rehabilitation campaign would have cost Carroll millions of dollars; and (3) Trump is a billionaire who would clearly have persisted in defaming Carroll unless the jury awarded hefty damages that would materially discourage him. While the Second Circuit didn’t see the matter as I would have, I can’t say its resolution is irrational. Our system prefers jury trials at which members of the community, not panels of experts, decide important questions of fact. Courts only countermand these findings if they are beyond the pale. Generally, if you can give a rational explanation for a conclusion, it is not beyond the pale, even if it may arguably be incorrect. Ergo, I can’t see the Supreme Court wading in.

The one claim in the Carroll case that could affect the office of the presidency involves immunity: the defamation statement made during Trump’s first term. In 2023, the Second Circuit found that Trump waived immunity by not raising it when he answered Carroll’s complaint. The president now argues that the Second Circuit’s decision on that score should be reconsidered in light of the intervening Supreme Court ruling in Trump v. United States (2024), in which the Court held that the president enjoys at least presumptive immunity for all executive acts and absolute immunity for acts at the core of executive power.

However, as the Second Circuit countered in rejecting Trump’s appeal of the second verdict, the Supreme Court’s Trump ruling dealt only with the extent of presidential immunity, not whether that immunity can be waived if not raised on time. For what it’s worth, I believe the Second Circuit (in the unanimous opinion of José Cabranes, a justly esteemed senior judge) was right about that. There is no conflict in the circuits on this matter and thus scant chance the Supreme Court would review it.

Trump has to pay Carroll the first $5 million, and it’s almost certain that he will have to pay the next $83.3 million too (all with interest accruing). The Supreme Court, I believe, will neither reconsider its refusal to review the first verdict nor review the second verdict.