Second Circuit Declines To Let Trump Grab Carroll By The Process. Again.

This morning a totally normal thing happened in the Second Circuit when the judges brushed off a request for en banc review by a disappointed appellant.

Well … not totally normal. The case did involve the sitting president’s effort to disappear the the first E. Jean Carroll verdict finding him liable for sexually assaulting and defaming the advice columnist. The hope was to persuade the wider court that trial Judge Lewis Kaplan abused his discretion with respect to the evidence presented at trial. These alleged abuses included admitting testimony that Trump attempted to sexually assault other women and indeed bragged about it on the infamous Access Hollywood tape, as well as by excluding information about who funded Carroll’s litigation. Trump was also big mad that Judge Kaplan didn’t let him tell the jury that Carroll named her cat “Vagina.”

In a per curiam order in December, Judges Denny Chin, Susan Carney, and Myrna Pérez affirmed the trial court’s ruling, finding no abuse of discretion, and, even assuming that the panel might have decided some minor issues differently than the trial court, merely harmless error.

Also this morning, a slightly less normal thing happened, which was that Judges Chin and Carney filed a concurrence lambasting the dissenters from the denial of rehearing en banc for their batshit crazy opinion.

“The dissent fails to cite contrary binding authority or any prior decisions that, upon review, actually conflict with the panel’s decision; it fails to acknowledge the deferential standard of review that binds us; and it fails to identify any single question of exceptional importance that requires en banc consideration,” they wrote incredulously, adding a terse reminder that “we do not convene en banc to relitigate a case.”

And finally this morning a completely insane thing happened which is — no surprises here! — Judge Steven Menashi filed said batshit dissent, which was joined by Judge Michael Park, the only other Trump appointee on the Second Circuit.

The dissent starts out with a footnote citing an unpublished Third Circuit opinion in Hill v. Cosby — yes that Cosby. The theory is that someone accused of a crime can deny the accusation without committing defamation. Except in that case it was Cosby’s lawyer talking about pending litigation, and he confined himself to denying the allegations and managed not to call Hill a liar participating in a hoax who was anyway too unattractive to assault. The court found that the lawyer’s denial was “not actionable because it includes the facts supporting that implication” and “adequately disclosed the factual basis for the attorney’s opinion.”

Auspicious!

The dissent goes on to complain that “The actual malice standard famously raises ‘the plaintiff’s burden of proof to an almost impossible level’” and yet the jury found it was met here, supposedly because the trial judge erroneously excluded evidence that some of Carroll’s legal fees were paid by LinkedIn founder Reid Hoffman (although apparently without her being fully aware of the subsidy).

The theory is that evidence of Democrats rallying around Carroll would undercut the predicate for a finding of actual malice, since it would go to the defendant’s state of mind. But, as Judge Chin and Carney point out, Trump never argued this himself since it was “orthogonal to his basic position” that what he said was true, not just his reasonable if mistaken belief. And, as they point out, it’s emphatically not the province of Circuit Court judges to run a simulation of what might have happened in a parallel universe if the parties had argued their cases differently.

The dissent is full of wild claims, but perhaps the most offensive is the suggestion that Trump can’t be liable for defamation because maybe he just plum forgot about sexually assaulting this woman in the dressing room at Bergdorf’s.

“Because the purported conduct underlying the lawsuit had allegedly occurred almost thirty years earlier and ‘lasted just a few minutes,’ at the time of his statement President Trump might not have even remembered any interaction—even assuming one occurred—let alone still regarded a lawsuit based on such long-ago events as a politically motivated hoax,” they wrote, snarking that “Normally, the statute of limitations would have prevented such a suit, but New York suspended the statute of limitations and Carroll sued ‘nine minutes after the [suspension] became effective.’”

It’s gross! And not normal! And coming to the Supreme Court this summer.

As for Carroll, she and her attorney’ Roberta Kaplan celebrated the ruling.

“Although President Trump continues to try every possible maneuver to challenge the findings of two separate juries, those efforts have failed,” they told ATL. “He remains liable for sexual assault and defamation.”

Carroll v. Trump [Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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