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Former President Trump Would Be ‘Well-Advised’ to Lawyer Up Before E. Jean Carroll Files Her Rape Lawsuit, Federal Judge Warns

E. Jean Carroll and Donald Trump

E. Jean Carroll and Donald Trump

Two days before their long-promised lawsuit accusing Donald Trump of rape, attorneys for writer E. Jean Carroll clashed with the former president’s counsel in federal court about the road map for trial. Trump’s lawyers told a judge that their client has not even decided who will represent him in Carroll’s soon-to-be-filed lawsuit directly accusing him of crimes.

U.S. District Judge Lewis Kaplan sent Trump’s lawyer Alina Habba an unmistakable message: The former president should make that decision — and soon.

“Your client has known this is coming for months, and he would be well-advised to decide who’s representing him in it,” Kaplan said during a telephone conference on Tuesday.

When Thanksgiving rolls around on Thursday, New York’s Adult Survivors Act will go into effect for the first time, likely leading to a flood of new lawsuits involving sexual assault allegations that otherwise would have been barred by the statute of limitations. Carroll’s attorneys have promised for weeks that their client will file one of them, accusing Trump of conduct that allegedly amount to six crimes under the New York penal code.

One of them, they indicated, would be “rape in the first degree.”

For roughly four years, Carroll has approached her allegations indirectly by necessity. She initially filed defamation claims after Trump denied her accusations to reporters by saying: “She’s not my type.” Shortly after, Trump claimed to be immune from civil liability under the Westfall Act, and the Department of Justice, then under the stewardship of Bill Barr, sought to replace him as a defendant. Attorney General Merrick Garland adopted the same position early in his tenure.

Two recent developments will render the immunity question — which is still being litigated before the D.C. Court of Appeals — obsolete. One is the soon-to-be-filed sexual assault lawsuit, accusing Trump of crimes pre-dating his presidency.

“The existence of that case has been known to the defendant since August,” said Carroll’s attorney Roberta Kaplan, who shares a last name with but is not related to the judge.

The other is a new defamation claim from Trump’s post-presidency, reiterating his earlier denials using similar language on his Truth Social platform.

During oral arguments, Trump’s attorney noted that Carroll has not filed the latest lawsuit.

“Are you in suspense whether it will be?” Judge Kaplan asked.

Laughing, Carroll’s lawyer chimed in: “No.”

Trump’s lawyers responded that the question is less whether the lawsuit will be filed but whom the former president will retain once he is served. Judge Kaplan did not reject those concerns out of hand, but he did note that Carroll’s attorneys first stated their intentions to file the lawsuit in August. Carroll’s lawyer noted that the two cases have “substantial overlap,” and she deposed Trump on the second alleged act of defamation: a 406-word post on Truth Social, republishing a statement disseminated through Save America, the former president’s political action committee.

Both Trump and Carroll’s legal teams agree on some delay for the previously scheduled trial for Feb. 6, 2023. However, Carroll believes that delay should only be a few months, until April 10, 2023. Trump’s legal team counter-offered a proposed date of May 8, 2023.

“You’ll be hearing me early in the week about this proposal,” Judge Kaplan said, ending the hearing.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."