When the law is an ass

Reflections on the Carroll v. Trump litigation

The other day, a New York jury awarded E. Jean Carroll the absurd amount of $83.3 million in damages against Donald Trump for defaming her. This award, which comes on top of the $5 million Carroll won in her previous defamation case against Trump, reportedly was eight times higher than what she initially sought in her lawsuit. Carroll is to receive $65 million in punitive damages and $18.3 million in compensatory damages (assuming the award survives challenge).

I don’t feel sorry for Trump — not with all the damage he’s inflicted during his time on earth.

However, I do feel sorry for a country with a legal system in which an absurdity like the outcome of these cases can occur. As I see Carroll’s two cases, they stand for the proposition that a woman can accuse a man of rape and then, if the man denies the rape, win a huge judgment against the man for his denial if made outside of court and court pleadings. The same unjust dynamic applies to any instance of serious accusation and denial.

And that’s just the beginning of the problems with what happened in this litigation. Here are three more disturbing aspects of it.

First, the defendant accused of rape is a controversial political figure and candidate for high office (who therefore needed to respond publicly and forcefully to the allegation), and his trials took place in a jurisdiction where he is massively unpopular. Thus, we now have precedent for dragging a Red State-style politician before a Blue-state jury and having that jury express its dislike with an absurd and potentially ruinous punitive damages award. Naturally, that’s also precedent for abusing a Blue State-style politician the same way.

Second, in this instance the alleged misconduct occurred “roughly 27 years” (I’m quoting from Paragraph 2 of Carroll’s first Complaint) before the suit was filed. This makes it extremely difficult for the trier of fact to determine correctly whether the defendant actually raped (or otherwise abused) the plaintiff, and thus whether his denial is true (and therefore not defamatory).

It also raises the possibility that a defendant who incorrectly denies the misconduct might not remember it. If the defendant doesn’t remember committing ancient misconduct, he ought not be liable for denying that it occurred.

Third, and most importantly in this case, the jury that tried Carroll’s first case did not rule in her favor on her claim that Trump raped her. As to Trump’s alleged conduct more than two decades ago, it ruled in her favor only on the matter of whether Trump sexually assault her. My friend Jim Dueholm, a frequent commenter here at Ringside, makes this point in a letter published by the Washington Times.

The upshot is that Trump did not defame Carroll when he denied raping her. If anything, Carroll defamed Trump by falsely accusing him of rape.

I assume that Carroll is insulated from liability because she made her accusation in a judicial proceeding. Fair enough. But there’s something very wrong about her parlaying her false allegation into nearly $100 million in “damages.”

Let’s look at the statements that Carroll alleged in her first complaint defamed her:

Paragraph 85 “Trump falsely stated he did not rape Carroll.” The jury did not find this statement to be false.

Paragraph 86: “Trump falsely stated that he never met Carroll.” The jury disagreed, but it’s not defamatory to deny meeting someone. Anyway, their encounter occurred so long ago that Trump might have believed, in good faith, that his statement was true.

Paragraph 87: “Trump falsely implied and affirmatively meant to imply that he had no idea who Carroll was.” This allegation suffers from the same problems as the one in Paragraph (86)

Paragraph 88: “Trump falsely implied and affirmatively meant to imply that Carroll had invented the rape accusation as a ploy for increased book sales.” If, as the jury found, the rape accusation was false, it seems to me that Trump’s view of her motive for the false accusation is a matter of opinion (and not an unreasonable one, given the timing of events). If so, it isn’t defamation.

Paragraph 89: “Trump falsely implied and affirmatively intended to imply that Carroll had invented the rape accusation to carry out a political agenda.” See my response to Paragraph 88.

Paragraph 90: “Trump falsely implied and affirmatively intended to imply that Carroll had invented the rape accusation as part of a conspiracy with the Democratic Party.” I don’t think this allegation has factual support. According to the Complaint (Paragraph 82), all Trump did was ask whether anyone had information that the Democratic Party was working with Carroll. This doesn’t imply a conspiracy, it just seeks to explore the possibility that there might be one — not an unreasonable possibility under the circumstances if, as the jury found, there was no rape.

Now let’s turn to the alleged defamatory statements set forth in Carroll’s second Complaint, the one that got her those tens of millions:

Paragraphs 96-98 repeat allegations from the first Complaint.

Paragraph 99 states: “Trump insulted Carroll’s physical appearance, implying that she was too ugly for him to have sexually assaulted.” All Trump actually said, according to as the Complaint, is that “this woman is not my type.” (Paragraph 92) I don’t see how this statement can constitute actionable defamation. Indeed,even expressing the opinion that someone is “ugly” doesn’t amount to defamation.

Carroll’s belated (by more than two decades) accusations against Trump might not have been a hoax. But I firmly believe that the outcome of the lawsuits she brought is a farce. I also believe the outcome is likely to have unfortunate consequences for our politics and our system of justice.