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Trump counterclaim against E. Jean Carroll dismissed, DA can get deposition

E. Jean Carroll exits the Manhattan Federal Court following the verdict in the civil rape accusation case against former U.S. President Donald Trump, New York City, May 9, 2023.
Brendan McDermid | Reuters

A federal judge on Monday dismissed a defamation counterclaim by Donald Trump against writer E. Jean Carroll in her pending lawsuit that accuses the former president of defaming her after she wrote that he had raped her.

Judge Lewis Kaplan, in a separate order made public Monday, ruled that Carroll’s lawyers can give the Manhattan District Attorney‘s office a videotape and transcript of the deposition of Trump they took last fall for the lawsuit.

That order raises the chance that Trump’s sworn testimony in Carroll’s case could be used against the former president as part of the DA’s pending criminal prosecution.

District Attorney Alvin Bragg Jr. charged Trump, 77, earlier this year with falsifying business records related to a 2016 hush money payment to porn star Stormy Daniels. That case, in which Trump has pleaded not guilty, is set to go to trial next May.

Trump’s counterclaim in the Carroll suit focused on what he argued were her false statements, which he alleged badly harmed his reputation, a day after a jury verdict in May in her favor for $5 million for sexual abuse and defamation in a related civil lawsuit in U.S. District Court in Manhattan.

Carroll during a CNN interview said that she thought, “Oh, yes, he did — oh, yes, he did” — after jurors in that case did not find that Trump had raped her.

In the same interview, Carroll described her encounter in court with Trump’s lawyer Joseph Tacopina right after the jury verdict, when Tacopina shook hands with her attorney, Roberta Kaplan, who is not related to the judge.

“Well, Joe Tacopina is very likeable. He’s sort of like an 18th century strutting peacock,” Carroll said on CNN. “So, he sticks out his hand — first he congratulated Robbie. And then, he was congratulating people on the team. And as I put my hand forward, I said, ‘He did it and you know it.’ Then we shook hands, I passed on.”

Judge Kaplan, in dismissing the counterclaim, wrote that Carroll’s statements repeating a claim that Trump had raped her were “substantially true” because the jury had found he digitally penetrated her, even if it did not find that he had penetrated her with his penis, as is required for a rape charge under New York law.

“In fact, both acts constitute ‘rape’ in common parlance, its definition in some dictionaries, in some federal and state criminal statutes, and elsewhere,” Kaplan wrote.

Roberta Kaplan, in a statement on the judge’s ruling, said, “We are pleased that the Court dismissed Donald Trump’s counterclaim.”

“That means that the January 15th jury trial will be limited to a narrow set of issues and shouldn’t take very long to complete,” Roberta Kaplan said. “E. Jean Carroll looks forward to obtaining additional compensatory and punitive damages based on the original defamatory statements Donald Trump made in 2019.”

Trump’s lawyer Alina Habba said, “We strongly disagree with the flawed decision and will be filing an appeal shortly.”

Bragg’s office in May issued a subpoena for the videotape and transcript of the deposition Trump gave in Carroll’s civil case last fall.

Trump’s lawyers then asked a New York state court judge to block the subpoena.

The judge last month ruled that Kaplan, who is overseeing Carroll’s case, should decide whether a protective order covering the deposition precluded it from being given to the DA’s office by her lawyers.

Kaplan, in his order made public Monday, said Carroll’s lawyers could comply with the subpoena.

Although Trump’s lawyers had argued in the state court action that the deposition was covered by the protective order, they did not renew that argument to Kaplan.

Carroll’s lawyers declined to comment Monday on the district attorney’s subpoena.

Bragg’s office did not immediately respond to requests for comment about the judge’s order allowing him to obtain the deposition.

The deposition Trump gave features an exchange he had with Roberta Kaplan, who asked him about the infamous “Access Hollywood” comment made years earlier. In those comments, Trump bragged about sexually groping women without asking for their consent and getting away with it because he was a “star.”

“Well, historically, that’s true with stars,” Trump answered.

Roberta Kaplan then asked him if was “true with stars that they can grab women” by their genitals.

“Well, that’s what — if you look over the last million years, I guess that’s been largely true. Not always, but largely true. Unfortunately, or fortunately,” Trump replied.

Carroll’s lawyer then asked him if he considered himself to be a “star.”

“I think you can say that, yeah,” he answered.

Carroll, 79, sued Trump in 2019, claiming the then-president defamed her in comments he made earlier that year denying allegations she first made in a New York magazine article that he raped her in the dressing room of a Manhattan department store after a chance encounter in the mid-1990s.

That suit is the one scheduled to go to trial in January.

Carroll separately sued Trump in late 2022. That action made the civil claim of rape — based on her account of the alleged attack in the 1990s — along with defamation, which stemmed from disparaging comments Trump made about her in 2022.

Carroll’s allegation of rape was allowed under a new state law that opened a one-year window permitting accusers in sexual abuse cases to file civil claims that otherwise would be barred by the statute of limitations.

That second case went to trial this spring and ended when the jury found Trump liable for sexually abusing Carroll and defaming her, and ordered him to pay Carroll $5 million in compensatory and punitive damages.

Trump is appealing that verdict.

In July, Judge Kaplan rejected a request by Trump to sharply reduce the jury award against him.

“The jury in this case did not reach ‘a seriously erroneous result,'” Kaplan wrote in an order that quoted Trump’s arguments.

“Its verdict is not ‘a miscarriage of justice,'” the judge wrote.

Earlier in July, the U.S. Department of Justice dropped a nearly three-year effort to shield Trump from civil liability from Carroll’s first lawsuit, which relates to comments he made about her while president.

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