A Judge Found Everything Wrong With Trump's Latest Strategy For Fighting A Defamation Lawsuit

Trump’s effort to invoke New York’s anti-SLAPP law against writer E. Jean Carroll’s case was legally unsound and “dilatory,” the judge concluded.

WASHINGTON — Former president Donald Trump on Friday faced another setback in his fight against a defamation claim filed by writer E. Jean Carroll, with a judge knocking down his attempt to reframe his defense strategy years after the lawsuit was filed.

US District Judge Lewis Kaplan found that Trump’s move to invoke what’s known as New York’s anti-SLAPP law — a law that prohibits “strategic lawsuits against public participation” and is aimed at shielding people from being sued to chill First Amendment speech rights — wouldn’t hold up against Carroll’s allegations and conflicted with federal court rules.

Beyond the legal deficiencies, Kaplan also concluded that Trump had repeatedly tried to drag out the proceedings since Carroll first sued him in November 2019. Carroll is seeking to hold him liable for statements he made that year in response to her allegation that he raped her in a department store dressing room more than 20 years earlier. Trump denied knowing Carroll and denied assaulting her, and accused her of making the claim in order to sell copies of a book she’d written.

Kaplan described how Trump had tried to avoid being served, raised a failed challenge to a court’s jurisdiction over him while he was president, unsuccessfully argued to halt the case pending the outcome of another civil suit, and, most recently, pressed a fight, along with the Justice Department, over whether the US government should be substituted as a defendant. Giving Trump the option of trying out a new defense, which could spur even more legal proceedings separate from the substance of Carroll’s defamation claim, “would make a regrettable situation worse,” the judge wrote.

“Taken together, these actions demonstrate that defendant’s litigation tactics have had a dilatory effect and, indeed, strongly suggest that he is acting out of a strong desire to delay any opportunity plaintiff may have to present her case against him,” Kaplan wrote.

Carroll’s case largely has been on hold while her lawyers, Trump, and the Justice Department have fought over whether the US government should step in. In September 2020, DOJ had moved the case from state court to federal district court in Manhattan. The government’s position — both when Trump was president and after he left — is that Trump was acting in his official capacity as president when he publicly responded to Carroll. Under the Biden administration, DOJ lawyers have made clear they believed Trump’s comments were “crude and offensive,” but insisted that the case implicates broader concerns about the executive branch’s protection against being sued.

In October 2020, Kaplan ruled that the Justice Department couldn’t take over defending the case on behalf of the federal government. Trump and DOJ appealed to the US Court of Appeals for the 2nd Circuit, and last summer the Biden administration signaled it would stay in the case. A three-judge panel of the 2nd Circuit heard arguments in December and has yet to rule.

Against the backdrop of that fight, Trump swapped lawyers in November, replacing his personal attorney, Marc Kasowitz, with Alina Habba. A few weeks later, Habba filed a request with the court to amend Trump’s answer to Carroll’s complaint to include a defense arguing that the lawsuit was barred under New York’s anti-SLAPP law as well as a counterclaim seeking damages from Carroll, also under the anti-SLAPP law. She had to refile the motion in January after the court posted a notice that there were errors with the original version.

Kaplan found that Trump’s legal efforts to bring the anti-SLAPP law into the case failed on multiple levels. The judge first wrote that as an affirmative defense against Carroll’s claims, the anti-SLAPP law wouldn’t help Trump. Trump would have to show that Carroll’s case lacked “substantial basis in fact and law.” The judge held that Carroll’s claim at this stage of the proceedings — that Trump defamed her by denying her rape allegation and making “disparaging and insulting remarks” — would clear that bar.

Raising the anti-SLAPP law as a counterclaim against Carroll failed as well, Kaplan wrote. Once Trump and the Justice Department moved the case to federal court, the anti-SLAPP law became unavailable as a defense because key parts of it conflicted with the rules that govern federal cases, he found, citing a 2020 decision from the 2nd Circuit in a separate case that had reached that conclusion.

Finally, Kaplan denied Trump’s effort to amend his defense on the grounds that it involved “undue delay,” “dilatory motive,” and “bad faith” and would prejudice Carroll. The judge noted that the latest version of the anti-SLAPP law that Trump had invoked became effective on Nov. 10, 2020, and that Trump’s motion wasn’t properly filed with the court until Jan. 11, 2022. He agreed with Carroll that there was “no satisfactory excuse” for the 14-month gap.

Carroll’s lead attorney, Roberta Kaplan — no relation to the judge — cheered the decision, saying in a statement: “As the Court said in its opinion today: a ‘characterization of [Donald Trump’s] previous and threatened future actions as dilatory, in bad faith or unduly prejudicial would be a bootless exercise. They are, in varying degrees, all three.’ Judge Kaplan further noted that this case ‘could have been tried and decided – one way or the other – long ago.’ My client E. Jean Carroll and I could not agree more.”

Habba wrote in an email: “While we are disappointed with the Court’s decision today, we eagerly look forward to litigating this action and proving at trial that the plaintiff’s claims have absolutely no basis in law or in fact.”

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