"Huge monetary award": Legal experts warn jury may hit Trump hard to "shut him up" amid new attacks

Former President Donald Trump is facing trial again in New York this week to determine additional damages for defaming former Elle magazine columnist E. Jean Carroll in 2019 when he denied her sexual assault allegations. 

A federal jury will begin deciding how much the former president owes the writer. It’s the second trial to be held in a pair of cases against Trump brought by Carroll.

In a prior civil lawsuit, Carroll accused Trump of raping her in a Bergdorf Goodman dressing room nearly 30 years ago and defaming her. Last year, a jury ruled in favor of Carroll, finding Trump liable for sexual abuse and defamation, and awarded her $5 million in damages.

“The jury has the power to impose substantial punitive damages on Trump for raping Ms. Carroll, then branding her accusation as made-up and then repeatedly castigating her in public and social posts as crazy and ‘whacky,’” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. 

The longtime advice columnist for Elle magazine first came forward with the allegations in an excerpt from her book in New York Magazine. Then-President Trump accused Carroll of fabricating a story to sell her book.

“I’ve never met this person in my life,” Trump said. “She is trying to sell a new book — that should indicate her motivation. It should be sold in the fiction section.”

Carroll filed a suit against him the same year, saying that Trump’s repeated denials and derogatory comments harmed her reputation.

U.S. District Judge Lewis Kaplan has ruled that Trump's remarks as president were defamatory and held him liable based on last year's trial outcome. The focus of the new trial is solely on determining the amount of money the jury deems Trump should pay in damages. Carroll is seeking $10 million in compensatory damages, which would be in addition to the $5 million awarded in the previous case that Trump has appealed.

“The damages will be calculated from 2019 when the subject statements were made, and since it covers a longer period of time than the damages awarded in the first trial, the damages could be more,” Los Angeles entertainment and libel law attorney Tre Lovell told Salon. “Also, Trump’s constant posting and tweeting about Ms. Carroll could have an effect on punitive damages, suggesting he is targeting her out of ill-will and spite.”

It’s possible that the court could "enjoin" Trump from repeating the statements found to be defamatory, but it’s not clear that Carroll is asking for this, Lovell added. Going forward, Trump is like a “walking slot machine for Carroll, and each time he repeats the defamatory statements, she pulls the lever and hits the jackpot.”

From a matter of law, the previous verdict may well be “material” in this case but in terms of liability and in terms of damages, if Trump is found liable, the court may be asked to consider not just real damages to Carroll’s character, but the court “may consider Trump’s failure to desist” as a factor in the awarding of punitive damages, David Schultz, professor of political science at Hamline University, told Salon. 

“This is an unusual case in that most individuals having lost, stop the defamation,” Schultz said.  “But here the issue is not so much that it is an ex-president or Trump, but that the issue is a billionaire who has deep pockets and is willing to keep spending money to defame someone. The court may need to think of punitive damages at a significantly higher level than perhaps we have ever seen in defamation cases. I think the parallel here is the recent Fox settlement with Dominion.”

A jury can take “literally anything” into consideration when determining punitive damages against the former president, including Trump's "despicable behavior," which involved luring Carroll into a dressing room, forcibly removing her clothes and sexually violating her, Gershman said. The judge himself called it “rape.”

Other factors that could influence his punishment may also include the “terrible emotional anguish” Carroll felt at the time of the rape and its impact on her life, work and relationships as well as Trump’s public attacks calling Carroll “mentally unbalanced” and “a whack job,” who is trying “to frame him for political reasons,” he added.

“The jury also must take account of the failure of the earlier award to deter him from repeating his wrongdoing, which is a critical factor in imposing punishment on a wrongdoer,” Gershman said.

Trump’s comments about Carroll have continued even as jury selection was set to take place Tuesday morning with the former president referring to the allegations made against him as “fabricated lies and political shenanigans.”

“The only right, honest, and lawful thing that Clinton-appointed Judge Lewis Kaplan, who has so far been unable to see clearly because of his absolute hatred of Donald J. Trump (ME!), can do is to end this unAmerican injustice being done to a President of the United States, who was wrongfully accused by a woman he never met, saw, or touched (a photo line does not count!), and knows absolutely nothing about,” Trump posted to his social media platform Truth Social.

Due to the trial's specific focus, Kaplan has significantly limited the evidence Trump can present, ruling that Trump is “precluded from offering any testimony, evidence or argument suggesting or implying that he did not sexually assault Ms. Carroll, that she fabricated her account of the assault, or that she had any motive to do so.”

The previous finding by the jury that Trump is guilty of sexual assault is now the “law of the case,” and cannot be “relitigated,” Gershman said. The previous damage award was imposed both as “compensation and punishment” against him. 

In this new proceeding, Carroll is claiming that Trump’s subsequent “public tirade” against her on social media not only continues to injure her emotionally but also signals to the jury and judge that Trump has “not been restrained or deterred from his wrongful conduct” by the previous amount of damages and that he believes the jury and judge should be ashamed of themselves and are complicit in what Trump calls a “rigged trial.” 

“The jury may now determine that a much heavier monetary amount must now be necessary to shut him up,” Gershman said. 

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The list of restrictions is “quite extensive” and puts Trump in a position where if he is to testify, his answers will be “narrowly tailored” to answer questions, defamation law attorney Camron Dowlatshahi told Salon. He won’t be able to “essentially campaign,” as he somewhat successfully did in the civil fraud case before Judge Arthur Engoron.

"This trial could answer the question of whether any amount of damages can silence Trump,” Dowlatshahi said. “If the jury were to return a judgment of that magnitude, even Trump would have to think twice before speaking badly of Carroll.”

From a matter of law, “the restrictions” that the judge has in place for Trump should not matter, Schultz explained. But for Trump who wants to make this a “show trial” and argue it is about politics, it may be a problem.  

“Trump wants to make this about politics so that arguably he could fund-raise and pay the fees and judgments here as a campaign-related expense,” Schultz said. “If he cannot make it about his campaign and it is personal, he needs to bear his own costs.”

Should the jury once again determine that Trump defamed Carroll, they could impose a “huge monetary award” as a form of punishment, Gershman explained. This would not only address the recent harm to Carroll but also account for the damage inflicted by Trump on the justice system. Despite the jury's prior finding that Trump sexually assaulted and defamed Carroll, he “continued to rant repeatedly” that the system, particularly the jury, is “rigged” against him.

“It appears that hitting Trump with a far heavier monetary damage award may be the only thing to deter him and silence him,” Gershman said.