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Trump and E. Jean Carroll Are Not Finished with Each Other

Speaking of "just beginning," there may be a verdict in the E. Jean Carroll case, but that doesn't mean that she and Donald Trump are done battling in court. Far from it, in fact.

First of all, it's easy to forget, but Carroll and Trump already had a second case wending its way through the judicial system. It's also about defamation, but while the defamatory remarks he got popped for on Tuesday were made while he was a private citizen, these defamatory remarks were made while he was president. And so, the question being worked out is whether or not Trump can be held liable for things said from the bully pulpit. On one hand, defamation is defamation. On the other hand, public officials are given pretty wide latitude in matters of public speech, in deference to the First Amendment. It could go either way, but if the presidency is not a "Get Out of Jail Free" card here, then Trump will probably end up having to add a few million more to that check he will be writing to Carroll.

In addition, Carroll is now pondering a third defamation case against Trump, thanks to the things he said—you guessed it—at the town hall. In addition to slamming Carroll as a "whack job" (see above), the former president also asserted that her story was "made-up" and "fake." Carroll told reporters that the comments were tough to read, and that "I am upset on the behalf of young men in America. They cannot listen to this balderdash and this old-timey view of women, which is a cave-man view." She and her lawyer Roberta Kaplan say they will decide, one way or the other, within a few days.

And finally, as expected, Trump announced yesterday that he's appealing the $5 million verdict handed down this week. We stand by our view here that an appeal is really, really dumb. He's got no leg to stand on here, as indicated by the fact that it only took the jury 2½ hours to find in favor of the plaintiff (and that is only because they spent 1½ hours ordering and eating lunch—really!). All that appealing will do is give this story more oxygen.

And actually, the more attention the case gets, the more likely it will have an additional effect, beyond just (potentially) damaging Trump's image and his political fortunes. As Slate's Ronnell Andersen Jones and Dahlia Lithwick point out, now that one person has won a defamation case against the former president, others he's potentially defamed might be inspired to take their chances as well. Defamation is tough to prove, and for Carroll it came with the added burden of proving a violent act that happened decades ago. And yet, she and her attorney not only pulled it off, but it took the jury a comically short amount of time to find in her favor. Can you imagine what would happen if just 5% of the people Donald Trump has slurred over the past few years decided to roll the dice and sue him?

One other thing Slate pointed out, this time courtesy of Robert Katzberg. One big reason that Trump got crushed here is that he simply couldn't take the stand in his defense. It would be too disastrous to allow him to open his mouth in open court. Well, that's not a problem that's going away, and it's going to haunt him and his lawyers as they plot strategy in future defenses, whether against E. Jean Carroll or against, say, the government of the United States.

Also, since we're on this subject, let's clear up a mystery (or, really, a stupid mistake we made). For some reason we allowed our mental wires to get crossed, and we looked at New York state law while trying to figure out how a federal trial would be conducted. Specifically, we were applying NYS rules for jury verdicts (five-sixths needed for a decision), when of course we should have been looking at federal rules (de facto, unanimity is required). We had several folks write in to clean up our mess; this explanation from reader B.R. in Eatontown, NJ, is very good:

The answer is simple: it was heard in federal court, not state court.

The longer answer: Although the original reason that the first Carroll v. Trump case came to be in federal court is convoluted, by the time these cases came on for trial they were being heard in federal court based on what is commonly known in federal practice as diversity jurisdiction. Diversity jurisdiction is the jurisdiction established by the federal Constitution (Art. III, Sec. 2) and governed by federal statute (28 USC 1332) that allows federal courts to hear cases between citizens of different states (Carroll of New York, Trump of Florida). In diversity cases, at least since the Supreme Court decided Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), whether state or federal law applies to a particular question varies depending on whether the issue is substantive (in essence dealing with the substance of the dispute) or procedural (dealing with the procedures to be used in deciding the litigation). Under the Erie doctrine, where the issue is substantive, then the federal court must apply the laws of the state, both the statutes and the common law. However, where the issue is procedural, then the federal court applies its own procedural rules.

While determining whether an issue is substantive or procedural can sometimes be debatable, the question of how many jurors must vote in favor of a verdict for it to be acceptable is recognized as being procedural. And it is answered by Rule 48 (b) of Federal Rules of Civil Procedure, which reads: "Unless the parties stipulate otherwise, the verdict must be unanimous and must be returned by a jury of at least 6 members." So that is why the jurors in the Carroll v. Trump case had to be unanimous in their decisions.

The New York statute you cited, CPLR § 4113, is the state analog to Rule 48 (b). (CPLR is the title of the portion of the New York's statutory law that sets out the state's "civil practice law and rules"—hence "CPLR.") That particular provision simply has no application to cases pending in federal court, even those federal courts based in New York.

Thanks to B.R. and all the others who wrote in, for picking us up! Everyone has an off day or two. Of course, some folks of a mathematical bent have even more than that, for... some reason. (Z)

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