Last week in New York, we saw Donald Trump locked inside a box that even Houdini couldn’t escape. In E. Jean Carroll’s second defamation suit, the combination of a persuasive set of facts, a no-nonsense judge, a strong showing by Carroll and her lawyers, a weak one by Trump and his counsel, and a New York jury produced a staggering $83.3 million verdict. That’s important as justice for Carroll and as a repudiation of what we call Trumpery: his penchant for trampling the rule of law to attack innocent victims—from sexual assault survivors to election officials (“I just want to find 11,780 votes”) to democracy itself. But it has a broader significance as well: All the factors that led to this verdict will also confront Trump in the next trial he faces, the 2016 election interference case being prosecuted in Manhattan by District Attorney Alvin Bragg.
Apart from the large size of the damages awarded, perhaps the biggest takeaway from the trial is that Trump’s conduct throughout exhibited the very malice members of the jury had to consider. If they had any doubts about Trump, they could simply look over at the defense table—his loudly whispered asides that it was a con job when the evidence was so clearly to the contrary; his grimaces; the frequent reprimands he and his counsel drew from the judge; and, perhaps worst of all, Trump walking out of court in the middle of Carroll lawyer Robbie Kaplan’s closing arguments.
This judgment is an unalterable loss for Trump. His lawyer Alina Habba stated on Friday that he will immediately appeal. The two main issues for appellate review are the large size of the damages the jury awarded and the sharp limits on Trump’s testimony.
Both are sure losers. With the damages amount it decided, the jury hit a legal Goldilocks number—just right. It was big enough to grab Trump’s attention and materially affect him. But it was proportionate enough to the harm he caused that it accorded with precedent establishing legal limits on damages.
The jury awarded a total of $18.3 million in compensatory damages—that is, compensation for Carroll’s economic loss and emotional harm. (That number includes $11 million for a “reputation repair campaign,” which was within the scope of costs presented by Carroll’s damages expert.) The jury then hammered Trump on punitive damages—which are meant to punish for intentional harm—requiring him to pay an additional $65 million.
Appellate courts are sensitive to excessive punitive damages and will overturn monetary awards that they deem extreme. While there is no bright-line rule, the Supreme Court has found that punitive damages four times the amount of compensatory damages might be “close to the line” but did not “cross the line into the area of constitutional impropriety.” Here, the $65 million in punitive damages is just under four times the $18.3 million in compensatory damages. That is within the acceptable range and won’t give appellate courts pause.
This is in contrast to the first Carroll defamation trial, where the compensatory damages of $2.7 million for the defamation claim dwarfed the punitive damages (which were just $280,000). (The jury in the first trial also awarded $2 million in compensatory damages and $20,000 in punitive damages for Carroll’s separate battery claim.) Trump’s continued defamation of Carroll after the first trial and even throughout the course of this one—repeating the lies he told about her over and over, and viciously attacking Carroll’s character—clearly showed the jury the need for significant punitive damages here. Indeed, this was the focus of Kaplan’s closing argument, in which she suggested that the only way to conceivably stop Trump’s abuse was for the jury to hit him where it hurt: his wallet.
The other main element of the trial that has already drawn Trump’s ire and will surely be appealed were the restrictions placed on his testimony by Judge Lewis Kaplan. That issue too is going nowhere on appeal.
Judges are the gatekeepers of evidence at a trial and have wide latitude to enforce those standards. Kaplan ruled that the first Carroll trial already established, as a matter of law, that Trump sexually abused and defamed Carroll. Therefore, the judge allowed no evidence to be introduced—including any testimony from Trump—that would contest those facts. Kaplan was strict, limiting Habba to just three relevant questions and Trump to short yes-or-no answers: that he stood behind his deposition, that he made his statement because Carroll made an accusation, and that he did not instruct anyone to injure Carroll.
We think the judge’s handling of Trump’s testimony was legally justified. Kaplan explained how the testimony Trump wanted to give could contain evidence that was legally precluded, so he asked Habba to make an offer of proof as to what precisely would be said. Habba agreed that the only thing Trump would say about his state of mind was that he had made his statement because Carroll had made an accusation. On the stand, Trump twice tried to go beyond that offer of proof—by improperly denying the allegation again, and also by testifying that he denied her allegation in order to defend himself, his family, and the “presidency.” Each time, Kaplan struck those comments from the record, as they fell outside the scope of Habba’s offer of proof and toward impermissible evidence.
Moreover, in the course of the back-and-forth with Judge Kaplan, Habba may not have actually objected to his rulings sufficiently to preserve the issue for appeal. If she failed to do so, then Trump will have waived the right to appeal Kaplan’s limitations on his testimony. That would be a stunning failure of basic lawyering by Trump’s counsel—but we saw quite a bit of that during the trial.
Habba has also indicated that Trump would raise a third issue on appeal: that there was an undisclosed conflict of interest because Carroll’s lead lawyer Robbie Kaplan and Judge Kaplan worked for the same law firm for a couple of years at the same time in the early 1990s. This complaint is frankly ridiculous. First of all, Habba acts as if the wool was pulled over her eyes, but this fact was easily ascertainable through a quick Google search. But more to the point, under no circumstances does Robbie Kaplan’s employment as a junior associate where the judge previously was a senior partner create an improper conflict of interest.
The verdict also may put Trump in a financial bind. In order to appeal the jury’s judgment, Trump will have to put up the full amount beforehand or secure a bond. The state of his finances is unclear, and he may or may not have the liquidity to satisfy this judgment. (In the New York civil fraud case, we learned that Trump at one point called on his children to help him satisfy a large obligation.) And all that is before this week’s anticipated judgment in the civil fraud trial, where we expect Justice Arthur Engoron to rule that Trump owes hundreds of millions of dollars in damages in that case.
The bad news doesn’t stop there for the former president. Losing money is one thing, but losing your freedom is quite another. At the end of March, Trump is expected to go to trial for the 2016 election interference case. The same combination of factors that led to such a devastating financial penalty in the Carroll case—powerful evidence, a no-nonsense judge, a New York City jury, and above all, Trump’s inability to control himself—risks landing him in prison in the Bragg prosecution.
Recall that Bragg is prosecuting Trump on 34 felony counts for allegedly falsifying business records to cover up payments to Stormy Daniels made at the end of the 2016 election. These payments were allegedly made to avoid a potentially campaign-ending scandal days after the Access Hollywood revelations and days before Election Day. Just as with the federal Jack Smith and Georgia election prosecutions, Bragg’s case is also an election interference case—and, unlike in 2020, the evidence suggests that the 2016 interference may have actually succeeded.
Like in the Carroll case, Bragg’s proof is strong, with witness testimony corroborated by documentary proof of each of the false entries—including in Trump’s own hand.
Justice Juan Merchan, like federal Judge Kaplan, is known as a tough and smart jurist who does not tolerate mischief in his courtroom. He has already presided over two criminal convictions related to Trump, that of the Trump Organization CFO Allen Weisselberg and the company itself—and New York state courts regularly impose sentences of incarceration for those convicted of felony falsification of records.
Moreover, the jury in the state case will be drawn from Manhattan only, whereas the federal Carroll trial drew from eight counties in and around New York City.
And, of course, Bragg’s defendant is the same one who so visibly could not control himself in court over the past weeks. Whether or not Trump chooses to testify in the criminal matter, we doubt, after observing him, that he will be able to refrain from the muttered comments, grimaces and walkouts that characterized his presence in the Carroll case. That clearly did him no favors with the civil jury and threatens to contribute to the same outcome in the criminal trial.
That means that both cases have one final commonality: Trump ultimately has no one to blame but himself for the box he is in.
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January 30, 2024 at 12:25AM
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Trump's courtroom behavior cost $83 million. Next time will be worse. - Slate
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