Trump Claims Immunity From Carroll Defamation Suit Because He's A Journalist Now, Okay?
(Photo by Win McNamee/Getty Images)
The first time Donald Trump called advice columnist E. Jean Carroll a liar and said he couldn’t have raped her because she was not his “type,” he was just doing his presidential duty. The second time, he was simply commenting on pending litigation as a litigant and/or as a reporter. And so both of Carroll’s defamation claims must be dismissed, kthxbai.
Either there is toxic mold in the ATL water cooler causing us to hallucinate, or this is the actual position taken by Trump’s sparklemagic attorneys Alina Habba and Joseph Tacopina in a motion for partial summary judgment docketed this morning in Carroll’s second defamation suit. The complaint, known as Carroll II, was filed in November after Trump screeched the following into the ether on October 12, 2022:
This ‘Ms. Bergdorf Goodman case’ is a complete con job, and our legal system in this Country, but especially in New York State (just look at Peekaboo James), is a broken disgrace. You have to fight for years, and spend a fortune, in order to get your reputation back from liars, cheaters, and hacks. This decision is from the Judge who was just overturned on my same case. I don’t know this woman, have no idea who she is, other than it seems she got a picture of me many years ago, with her husband, shaking my hand on a reception line at a celebrity charity event. She completely made up a story that I met her at the doors of this crowded New York City Department Store and, within minutes, ‘swooned’ her. It is a Hoax and a lie, just like all the other Hoaxes that have been played on me for the past seven years. And, while I am not supposed to say it, I will. This woman is not my type! She has no idea what day, what week, what month, what year, or what decade this so-called ‘event’ supposedly took place. The reason she doesn’t know is because it never happened, and she doesn’t want to get caught up with details or facts that can be proven wrong. If you watch Anderson Cooper’s interview with her, where she was promoting a really crummy book, you will see that it is a complete Scam. She changed her story from beginning to end, after the commercial break, to suit the purposes of CNN and Andy Cooper. Our Justice System is broken along with almost everything else in our Country. In the meantime, and for the record, E. Jean Carroll is not telling the truth, is a woman who I had nothing to do with, didn’t know, and would have no interest in knowing her if I ever had the chance. Now all I have to do is go through years more of legal nonsense in order to clear my name of her and her lawyer’s phony attacks on me. This can only happen to “Trump”!
Forgive the long quote, but it is the position of Trump’s lawyers that all of that was commentary on Carroll I, Carroll’s first defamation case filed in 2019, and is thus covered by the litigation privilege.
“[I]t is obvious that Trump, in the October 12, 2022 Statement, was merely writing about Plaintiff’s pending lawsuit against him (Carroll I), while referencing Carroll’s claims in Carroll I, his positions taken in Carroll I, and background information concerning Carroll I,” they argue. “Consequently, the alleged defamatory statements in the October 12, 2022 Statement, as a matter of law, are protected by the absolute litigation privilege under N.Y. Civ. Rights Law § 74, and Count II of the Carroll II Complaint, which wholly arise from such statements, should be summarily dismissed with prejudice.”
By this logic, a person sued for calling someone a child molester could go on television and call the defendant a child molester all day every day until the conclusion of the case — or perhaps forever! — and claim that it was protected by the litigation privilege.
Not convinced? That’s fine, there’s plenty more spaghetti where that came from.
What if, Trump is actually … reporting on the news of the day?
See, New York Civil Rights Law §74 protects “the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding.” And so maybe Trump was just doing lay journalism when he said her book was “really crummy,” he “would have no interest in knowing her,” and that, again, he could not have raped her because she was not his “type.”
Well, it’s a bold strategy. It also elides the fact that the comments about Carroll’s interview with Anderson Cooper weren’t part of the original defamatory statement, a fact Trump waves away by saying it was “inextricably intertwined” with Carroll I. It also seems a little fuzzy about the distinction between expressing an opinion about a case and neutrally reporting the facts alleged in publicly available court records.
No doubt Judge Lewis Kaplan will be mad impressed with the argument that Trump can’t be sued because he’s a reporter now. Tune in next week when defense counsel argues that the case must be dismissed because Trump’s statements were executive privileged and/or shielded by diplomatic immunity thanks to his position as Ambassador from MAGAstan.
Carroll v. Trump I [Docket via Court Listener]
Carroll v. Trump II [Docket via Court Listener]
Liz Dye lives in Baltimore where she writes about law and politics.