Legal experts: Trump lawyer Alina Habba's attacks on E. Jean Carroll won't fly with the judge

Former President Donald Trump’s attorney Alina Habba may have jeopardized his defense by violating the judge's rules during her opening statements on Tuesday. 

Judge Lewis Kaplan previously issued an order barring Trump and his legal team from discussing specific aspects, including E. Jean Carroll's past romantic relationships, evidence or arguments suggesting that the former president did not sexually assault her and that the writer fabricated her account of the assault.

However, Habba began her opening line by doing exactly the opposite. 

“President Trump defended himself when publicly accused—” she said before Carroll’s lawyer cut her off with an objection.

“Don’t go much farther,” Kaplan warned. 

The judge clarified to the lawyers and the jury that they weren’t there to reexamine the case or delve into the reasons behind Trump's actions. The primary focus of the case is to determine the amount that Carroll will be awarded from Trump.

Last spring, a jury ruled in favor of Carroll, finding Trump liable for sexually abusing her in a Bergdorf Goodman dressing room nearly 30 years ago and defaming her in 2019 when he denied her allegations of sexual abuse and suggested she was motivated by money. The jury awarded her $5 million in damages.

This week, Trump is facing trial again to determine whether he will have to pay the former Elle magazine columnist additional damages for defaming her five years ago. 

Trump has denied all wrongdoing and has maintained he was “wrongfully accused by a woman he never met, saw, or touched.” The ex-president has suggested that Carroll fabricated a story to sell her book and make money – a similar narrative his lawyer argued in court Tuesday.

Habba implied that Carroll chose a strategic moment — when Trump became president — to publicly share her story, aiming to maximize media coverage.

“She has gained more fame, more notoriety than she could have ever dreamed of,” Habba said. "She wanted status. We will show you that she wanted the attention, and it was planned."

Habba is “stretching for any argument she can make,” especially now that the court has already found that Trump's comments were defamatory, Laurie Levenson, a law professor at Loyola Marymount University, told Salon.

“In this day and age, I don't think most people believe that women come forward with this type of experience for fame and gain,” Levenson said. “The process is just too traumatic.”

Habba’s argument can be “flipped on its head,” which is to say that Carroll went out of her way not to harm Trump, but when he started making himself such a public figure, she couldn't stay quiet anymore, Levenson added.

“Habba is defending Trump because she has decided to be his lawyer,” she continued. “Many other lawyers have moved away from him, but she is his loyalist.”

These arguments “seem designed” to be part of Trump‘s political campaign, and will not be admissible at trial, former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. This “strategy” is about defending Trump‘s reputation among his supporters.

Carroll didn't accuse Trump of sexual assault until 2019 and filed a defamation suit against him for making derogatory comments and calling her a liar. She filed a second defamation suit in 2022 as Trump continued to deny her claims.

Her legal team also added a claim of rape under New York's Adult Survivors Act, which gave adult sexual assault victims, those 18 or older at the time of the alleged abuse, the opportunity to file civil lawsuits, even if the statutes of limitations have long expired.

One of the things that changed in Carroll’s favor was the move by the New York state legislature to change the statute of limitations for victims of sexual assault, trial attorney Bernard Alexander told Salon.

“Carroll for many years had no incentive to speak out against Trump,” Alexander said. “To speak without an objective would only prompt a Trump attack or perhaps litigation initiated by him.”

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Given Trump’s public statements, she may have been prompted to respond and set the record straight, he added.

In this case, where liability for defamation has already been found, Trump’s lawyers’ objective is to “minimize” the damages, Alexander continued. Habba is trying to attack Carroll’s motive in an effort to attack her credibility. 

“Defamation cases do not have an inherent, intrinsic value,” he said. “The value of the case is based on the credibility of the plaintiff, the extent to which the jury is angry at the defendant, and arguments made by plaintiff’s counsel as to how the jury should value the harm."

If Habba can cause the jury “to question or dislike” the motive of the plaintiff, an argument can be made for the jury to devalue the damages, Alexander explained. She has “some cover” in taking such a challenging case because she can blame someone else for losing on the liability aspect and has the luxury of just seeking to minimize the damages.