“I’ll never settle,” E. Jean Carroll said outside a New York City courtroom late Tuesday afternoon, where a hearing took place in her defamation case against former president Donald Trump. “We’re in this fight, not really for me, but for all women who have been grabbed and groped, and assaulted and raped, who were silenced.” He’s now trying to claim she’s violating his right to free speech — and the former Elle columnist is having none of it.
Several years ago, Carroll accused Trump of raping her in a Bergdorf Goodman dressing room around 1995 or 1996. Carroll made this allegation in her 2019 book, What Do We Need Men For? A Modest Proposal. A portion of What Do We Need Men For, detailing Trump’s alleged attack, was excerpted in New York Magazine shortly before the book’s publication, causing an uproar. Since 2016, at least 15 other women have accused Trump of sexual misconduct, though the allegations stretch back decades.
Trump responded as one would expect from the “Grab ’em by the pussy” president: by calling Carroll a liar and commenting on her appearance. “I’ll say it with great respect: Number one, she’s not my type,” Trump told The Hill shortly after the New York Mag excerpt came out. “Number two, it never happened. It never happened, OK?”
“Totally lying. I don’t know anything about her,” Trump went on. “I know nothing about this woman. I know nothing about her. She is — it’s just a terrible thing that people can make statements like that.”
Carroll filed suit against Trump that November, saying his statements were false and defamatory.
“Trump knew that these statements were false; at a bare minimum, he acted with reckless disregard for their truth or falsity. Trump had recognized Carroll on sight at Bergdorf Goodman. He knew who she was when he raped her, and he knew who she was in 2019. He certainly knew that she was telling the truth,” Carroll’s lawsuit alleged. “After he lied about attacking her, he surrounded that central lie with a swarm of related lies in an effort to explain why she would invent an accusation of rape.”
More than two years into the suit, Trump wants a judge to let him include a new defense strategy, based on the idea that Carroll is violating his free speech rights by suing him. He wants to file a counterclaim against Carroll using New York’s strong anti-SLAPP law. (SLAPP stands for “strategic lawsuit against public participation,” so an anti-SLAPP law basically prevents people from bringing a bogus defamation suit for the purpose of silencing critics.)
By trying to use this legal maneuver, Trump is essentially arguing that Carroll’s suit is an intimidation tactic, “as retribution for [his] truthful statements, and for the sole purpose of harassing, punishing, or otherwise maliciously inhibiting his free exercise of speech.” Trump also wants to argue that Carroll should pick up the tab for his legal fees.
Trump’s invocation of anti-SLAPP law is not without irony. For years, Trump has railed against the media, decrying any coverage he disliked as “fake news” and calling for draconian libel laws. When it comes to attacking one of his sexual assault accusers, however, Trump turns to a law that’s meant to protect the institution he so loathes.
Trump has done this before. He turned to New York’s anti-SLAPP statute in defending himself against former Apprentice contestant Summer Zervos’ defamation lawsuit against him. Zervos accused Trump of sexual misconduct; she sued him after he called her allegations lies which, she contended, wrongly smeared her reputation. Zervos dropped her suit against Trump in November.
In December 2018, Trump won nearly $300,000 in legal fees after using Texas’ anti-SLAPP legislation to secure a dismissal of Stormy Daniels’s defamation lawsuit against him, according to The Hollywood Reporter.
Judge Lewis Kaplan, who is presiding over Carroll’s case, seemed wary of letting Trump amend his defense with an anti-SLAPP approach, expressing skepticism that the law, which is state statute, would apply in federal court. And if it didn’t apply, what’s the point?
“Why isn’t amending futile?” Kaplan asked.
“We’re very early here in the litigation,” Alina Habba, one of Trump’s lawyers, said. “It is not futile.”
Kaplan repeatedly made dry comments and asked wry questions during Habba’s argument. At one point, Kaplan referred to a legal issue as unsurprising “to anyone who’s been to law school.”
Kaplan seemed to view the suit as having a straightforward set of facts, saying it was a classic “he said, she said case.”
“Mr. Trump denies it ever happened and says various other things, and Ms. Carroll said it happened,” Kaplan said.
Roberta Kaplan, Carroll’s lead attorney (no relation), told Judge Kaplan that they didn’t need to conduct a lengthy fact-gathering process.
“We do not seek to depose president Trump,” Roberta Kaplan said. “And we’d like his DNA, that’s it.” Carroll kept the dress that she said she was raped in, and wants it to undergo forensic testing.
While Trump’s lawyers hope that judge Kaplan will let them revamp their defense, Carroll and her lawyers want the case to move forward without delay.
“We think it’s time for Donald Trump…to stand naked in front of Lady Justice,” Carroll said.
Roberta Kaplan told reporters that they are ready to move quickly once legal issues relating to the case — like Trump’s request to have another go at his defense, and an ongoing appeals court proceeding — get resolved.
“We could be at trial in six months,” Roberta Kaplan said of their preparedness.
Judge Kaplan did not give any indication about when he would make a decision.