"This trial will not be a do-over": Judge bans Trump from denying he sexually abused E. Jean Carroll

Judge overseeing case shut down Trump's bid to interject attacks at trial — but allowed "Access Hollywood" tape

By Tatyana Tandanpolie

Staff Writer

Published January 10, 2024 11:33AM (EST)

E Jean Carroll and Donald Trump (Photo illustration by Salon/Getty Images)
E Jean Carroll and Donald Trump (Photo illustration by Salon/Getty Images)

A federal judge on Tuesday delivered a scathing order effectively blocking former President Donald Trump from employing the go-to moves of his litigation playbook ahead of his second, E. Jean Carroll defamation trial in New York, which is set to begin next week. 

Trump's lawyers had initially prepped for the upcoming trial as if the first case brought by the ex-columnist hadn't happened, according to The Daily Beast's Jose Pagliery, viewing it as a redo and a chance at vindication for the former president after a jury concluded last year that he sexually abused Carroll in the mid-1990s. 

But U.S. District Judge Lewis Kaplan intercepted that plan Tuesday, establishing that this proceeding would not be rehashing whether he assaulted Carroll.

“In other words, the material facts concerning the alleged sexual assault already have been determined, and this trial will not be a ‘do over’ of the previous trial,” Kaplan said in the 27-page order.

The federal judge outlined that the jury in the upcoming trial will only be deciding on how much in damages Trump will fork over for defaming Carroll while serving as president in 2019, when he denied the sexual assault — saying he couldn't have raped her because she was not his "type" and accusing her of fabricating the assault to promote her upcoming memoir — that last year's jury ruled did happen. That jury awarded Carroll a total of $5 million in damages.

The new jury will traverse Trump's decades of misogyny as they review the most damning evidence against him, including the "Access Hollywood" tape where he brags about being able to "grab them by the pussy" and his recorded deposition where he says celebrities get away with sexual assault “unfortunately—or fortunately.”

Kaplan's Tuesday order barred Trump from making further denials about the facts of the lawsuit, snatching out the crux of the former president's litigation plan. 

“Mr. Trump and his counsel are precluded, in the presence of the jury, from claiming that Mr. Trump did not sexually abuse (“rape”) Ms. Carroll, that he did not make his… 2019 statements concerning Ms. Carroll with actual malice… or that Ms. Carroll fabricated her account,” the judge wrote, adding further that Trump can't claim he didn't believe Carroll was telling the truth about the 1990s encounter.

Kaplan also barred discussions of DNA, a major point of contention for the Trump team in last year's case that Kaplan dubbed "the long saga."

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Upon first revealing her claims against Trump in a New York Magazine column, Carroll made clear that she had kept the black coat dress she wore the evening Trump assaulted her in the dressing room of a Manhattan Bergdorf Goodman department store. Her lawyers had it tested for human DNA samples, with the California laboratory finding several, but the former president refused to take a test that held the potential of matching his genetic material to what remained on the coat.

As a result, the trial proceeded based on both parties' recollection of the incident and the swath of first-hand accounts that Trump had also attacked other women over the years. 

Trump offered at the eleventh hour to finally get tested ahead of the first trial's start, but the judge seemed to interpret the move as a bad-faith maneuver to sway the public eye after the evidence exchange had completed. 

In the upcoming trial, Kaplan forbade Trump from even alluding to the subject in front of the jury, citing “his own unjustified refusal to provide a sample of his own DNA on a timely basis.”

Trump putting forth the argument that there is no "conclusive scientific proof" that he committed the assault would "obscure the fact that Mr. Trump himself is the primary reason why there is no DNA comparison evidence in this case," Kaplan wrote, determining that bringing up the lack of DNA evidence would be “fundamentally unfair and substantially prejudicial” to Carroll.

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Unlike their client, who has repeatedly flung insults at Carroll and recently went on a social media tirade against the writer, Trump's attorneys are also barred from discussing her past romantic relationships, implying that she's pursuing a political aim in suing Trump, or mentioning how she chose her lawyer.

In the order, the judge rejected Trump's argument that Carroll hiring attorney Roberta Kaplan, a high-profile lawyer who once argued before the Supreme Court in favor of same-sex marriage, contributed to the negative attention she received when the former president defamed her. That claim, the judge found, was "unpersuasive" and lacked "any merit."

Kaplan further banned the lawyers from informing the jurors in any capacity about how Carroll was funding her lawsuit. Court filings last year showed that Democrat megadonor and LinkedIn billionaire Reid Hoffman had been financially supporting Carroll's case.

"Mr. Trump's position on this issue is no stronger now than it was in Carroll II," Kaplan wrote of Trump's counsel leveling an argument about Carroll's litigation funding, adding, "The prejudice inherent in such an exercise would outweigh substantially any probative value."

The judge's prohibitions shield the jurors from the rage-filled commentary prevalent on Trump's Truth Social account, while essentially derailing much of Trump's plans to finally testify at this trial after skipping the first one, raising the risks of what the former president stands to lose. 

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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