Former President Donald Trump asked a federal judge to reject writer E. Jean Carroll’s defamation lawsuit before it heads to trial early next year. In a court filing, Trump claims that Carroll “consented to the publication” of his response to her rape allegations when she brought them to national attention.
“In short, Plaintiff sought to drum up a national outcry in response to her narrative, she succeeded, and she cannot now claim that the statements were defamatory when she actively solicited them,” Trump’s attorney Alina Habba wrote in a 35-page memo seeking summary judgment.
Carroll currently has two active lawsuits pending against the former president: a defamation lawsuit and another filed under New York’s Adult Survivors Act, which suspended the statute of limitations for sexual assault claims. Trump is currently hoping to dismiss the earlier complaint, which has been slated for trial on April 2023.
“Extraordinarily Offensive”
Both lawsuits accuse Trump of raping Carroll inside the dressing room of a Bergdorf Goodman store in the mid-1990s, but they adopt different strategies for civil liability.
When Carroll filed her first lawsuit in 2019, she could not address her sexual assault allegations directly, and instead, she sued Trump for his reaction to reporters who questioned then-president about the allegations.
“She’s not my type,” Trump responded.
Among the various arguments adopted in the memo, Trump’s lawyers assert that Carroll “sought to intentionally elicit a denial from Defendant of her inflammatory allegations, in the hopes that any such retort could serve as a basis for defamation lawsuit.”
“By her own admission, [Carroll] purposefully chose to publish her account in New York Magazine to garner as much attention as possible,” the memo continues.
Carroll said she passed on publishing at Elle, the one-time home of her advice column, because they became “less into politics or news.”
“Despite the fact that the incident purportedly happened in 1995, Plaintiff waited 27 years to publicly raise her allegations, a time when Defendant was the sitting President of the United States. The suspect timing can only lead to one logical conclusion – she publicized her account to maximize the national attention her story would receive,” the memo states.
Carroll’s lawyer Roberta Kaplan told Law&Crime that the word “consent” does not describe any aspect of her client’s allegations.
“E Jean Carroll did not ‘consent’ to being sexually assaulted by Donald Trump any more than she ‘consented’ to being defamed by him,” Kaplan wrote in an email. “Trump’s latest ‘she made me do it’ defense is not only extraordinarily offensive, but completely lacks merit under New York law.”
“A Singular Question”
Trump previously tried (and failed) to dismiss Carroll’s lawsuit by arguing that he had absolute immunity for statements that he made as a sitting president, and the Department of Justice — both under the leadership of Bill Barr and Merrick Garland — adopted in the same position in court, seeking to shield him under the Westfall Act.
Senior U.S. District Judge Lewis Kaplan rejected that position, but his ruling was partially overturned by the Second Circuit, which punted a remaining question about Trump’s immunity to another appeals court in Washington, D.C. That appeal remains pending, but Trump’s legal team framed the question as a weighty one.
“At the heart of this case lies a singular question of paramount importance: should a sitting President have the right to address the public on matters of grave national importance without fear of being dragged into harassing and burdensome lawsuits? The answer to this question will reverberate well beyond the instant dispute.”
Regardless of how the court answers that question, Trump’s claim of immunity likely will not help him fend off Carroll’s second lawsuit, which involves allegations pre-dating and post-dating his presidency. That lawsuit also levels another count of defamation based on Trump’s Truth Social post from October, insulting Carroll and criticizing the judge for refusing to pause her lawsuit.
(image of Carroll via Astrid Stawiarz/Getty Images for Glamour; image of Trump via JIM WATSON/AFP/Getty Images)
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