Last week, attorneys for Donald Trump and advice columnist E. Jean Carroll faced off for another round in front of US District Judge Lewis Kaplan. Carroll sued Trump in 2019 for defamation after he called allegations that he raped her in 1996 a “hoax” and branded her a liar whom he had “never met.” In the intervening three-plus years, Trump has ducked the process server, claimed immunity, asserted that New York courts had no jurisdiction over him as a Florida resident, removed the case to federal court, attempted to substitute the government as defendant, and generally refused to cooperate with discovery.
In short, he and his sparklemagic legal team of Alina Habba and her partner Michael Madaio have done everything they could to get the court good and mad at them. And the ranting about the judge on television and social media by Trump and his lawyers isn’t helping matters, either.
Team Trump continued to piss off the court at a scheduling conference held last Tuesday to discuss two recent events.
The first is that in September the Second Circuit partially reversed Judge Kaplan’s holding that Trump was not an employee of the federal government and, even if he were, had not been acting within the scope of his employment when he made the allegedly defamatory statements. The appellate panel held that Trump was a government employee, thus was eligible for the protections of the Federal Tort Claims Act. As to whether Trump had been doing his a job when he said that Carroll was too ugly for him to rape, the Circuit sent the question to the DC Court of Appeals to determine consonant with the jurisdiction’s laws. On October 25, DC Court agreed to expedite its consideration of the matter.
Secondly, the state of New York passed the Adult Survivors Act (ASA) allowing a one-year amnesty period for victims of sexual assault and incest to sue their assailants, despite the fact that the statute of limitations may have already tolled. The law went into effect on Thanksgiving, and Carroll promptly filed a second suit in the Southern District of New York adding a battery count under the ASA, as well as a new defamation count for comments Trump made last month repeating his claim that Carroll’s allegations are “a Hoax and a lie, just like all the other Hoaxes that have been played on me for the past seven years.” And since he’s not president anymore, there’s no chance that the DOJ is going to dive on another grenade.
In an August 8 letter to the court on which Habba was CC’d, Carroll’s lawyer Roberta Kaplan (no relation to the Judge) detailed her plan to file the ASA suit and consolidate it with the pending claim. Indeed, the court itself referred to the “imminent claim” in an October ruling instructing the former president to sit for a deposition, since he’d already had the benefit of thousands of pages of discovery from Carroll, while refusing to cooperate at all himself.
Similarly, Carroll’s lawyer said immediately after Trump made his vile comments last month that she was going to add a second defamation count. Nevertheless, Habba and Madaio insisted at last week’s hearing that they couldn’t possibly address the request to consolidate the two cases because they hadn’t been retained for it and didn’t know if they would be. Indeed, Habba complained in a November 21 letter that she’d been snookered into not asking for an emergency stay from the Second Circuit because plaintiff’s counsel hadn’t announced that she was going to file the second complaint.
This was all a bit too much for Judge Kaplan.
“Your client has known this was coming for months and would be well-advised to decide who is representing him in it,” he said, testily, adding that the court would have “a lot more to say” after the filing hit the docket.
And now, it has. So it seems pretty likely that “a lot more” is coming, and soon. Let’s take a wildass shot in the dark that the judge who held that “Mr. Trump has litigated this case since 2019 with the effect and probably the purpose of delaying it” will be unreceptive to arguments that the plaintiff should have to go back to square one for the new defamation and battery claims.
Liz Dye lives in Baltimore where she writes about law and politics.
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