“He’s making a mistake”: Legal experts warn Trump’s attacks could cost him “higher punitive damages”

U.S. District Judge Lewis Kaplan threatened to remove Donald Trump from the courtroom during writer E. Jean Carroll‘s emotional testimony as she recounted how the former president had damaged her reputation and subjected her to repeated attacks by some of his most extreme supporters.

Trump, who sat in the Manhattan courtroom, uttered phrases like “con job” and “witch hunt” as Carroll testified about the events that unfolded when Trump dismissed her as a liar following her 2019 accusation of rape against him.

Carroll's legal team informed the judge that if they could hear Trump's comments, it was likely that the jury could as well. This prompted Kaplan to tell Trump to “take special care to keep his voice down when he’s conferring with counsel so that the jury does not overhear it.” 

But Trump continued to comment on Carroll's testimony disregarding Kaplan's warnings to remain quiet.

“Mr. Trump has the right to be present here, but that right can be forfeited and it can be forfeited if he is disruptive and if he disregards court orders,” Kaplan said. “I understand you are very eager for me to do that, I know you would because you just can’t control yourself in this circumstance.”

“I would love it,” Trump said.

“I know you would,” the judge shot back. “You just can’t control yourself in these circumstances, apparently.”

The clash happened on the second day of the defamation trial, where a jury is responsible for determining whether Trump will have to pay Carroll additional damages for defaming her in 2019 after she accused him of sexually assaulting her in a department store in the 1990s. 

Kaplan has already found that Trump's comments in 2019, branding her a liar and suggesting that Carroll was motivated by money, were defamatory. A jury previously awarded her $5 million in damages after finding Trump liable for sexually assaulting her and defaming her on another occasion.

The ongoing trial is now centered on determining the extent of damages Carroll should be granted. Damages can include anything ranging from reputational harm to emotional and mental distress as well as any lost opportunities and expenses that Carroll incurred as a result of the defamatory statements, Los Angeles entertainment and libel law attorney Tre Lovell told Salon. 

“Also, punitive damages will be considered which are meant to punish Trump and deter future conduct,” Lovell said.

Some legal experts have suggested that if Trump continues to make comments calling Carroll a liar, as he has on social media since the trial started, the court “could enjoin” Trump from repeating these defamatory remarks. This would turn Trump into “a walking slot machine” for Carroll, with each defamatory statement becoming a potential “jackpot.”

The “rants” by the former president in the trial are “perfectly consistent” with the kind of “reckless and toxic” rhetoric he always spews out,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon.

“It’s not clear who his audience is,” Gershman said. “If it’s the jury, he’s making a mistake. His reckless and unhinged remarks will only persuade the jury to award a higher punitive damage award to punish him and silence him.”

However, if it’s the judge, Trump has “successfully provoked” Kaplan to threaten “to banish” him from the courtroom and depending on how Trump responds, the judge can even hold him in contempt for his “disgraceful behavior.” 

“If it’s his herd of MAGA extremists, they’ll follow him no matter what he says,” Gershman said.

The former president has attacked Carroll since she first accused him of rape in a book excerpt five years ago. He pushed the narrative that Carroll fabricated a story to sell her book and claimed he had never met her in his life. 

Carroll during her testimony talked about the effect his denials have had on her personal life, telling the jury Trump “shattered” her reputation.

“Previously, I was known simply as a journalist,” she said, according to The New York Times, “and now I’m known as the liar, the fraud and the ‘wack job.’”

“Carroll’s testimony was compelling,” Gershman said. “She appeared to be composed and gave an articulate and emotional presentation.”

Comments that “inject skepticism, disbelief, disparagement of the proof, or character attacks,” can have a “significant impact” on the trial, particularly if the remarks are heard by the jury, he added. 

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Trump’s lawyer Alina Habba, who had previously implied that Carroll chose a strategic moment to publicly share her story to get media coverage, also cross-examined the writer. 

Habba mentioned messages of support that Carroll said she had received in the wake of her accusations and questioned whether she was suffering emotional harm after Trump’s response.

“That’s not fair to say,” Carroll said, explaining that she had experienced both “great support” and a “horrible, menacing, terrible flood of slime.”

At one point, Habba said she intended to question Carroll about a topic previously deemed off-limits, leading Kaplan to scold her and tell her to once again sit down, Politico reported. 

"Trump and Habba are responsible for a shameful display of courtroom decorum, but Judge Kaplan has himself to blame,” former federal prosecutor Neama Rahmani told Salon. “His empty threats of removing Trump from the courtroom are meaningless because he won't follow through. Any other person would have been held in contempt by now."

Trump and his lawyers are not only speaking to the jurors in the courtroom, but the court of public opinion, he added. Trump can't put up much of a legal defense because the judge ruled that he sexually assaulted Carroll as a result of the verdict in the first trial.

“It's just a question of what Carroll's damages are, so Trump is attacking her and the judge hoping it will resonate with voters," Rahmani said.

If the amount of damages that Carroll obtains is “relatively low” and if Trump's running commentary is a potential factor, then Carroll’s lawyers could possibly appeal. “But they would have to create a record by objecting and asking for a mistrial," he said.