E. Jean Carroll v. Donald J. Trump and United States of America (poll added!)

[SuzieC]

Does that imply that plaintiff has a rapekit evidence to back up the accusation? Or is it a Clinton-style redo all over?

IIRC she kept the dress she was wearing when OSG raped her.

[Kendra]

Does that imply that plaintiff has a rapekit evidence to back up the accusation? Or is it a Clinton-style redo all over?

IIRC she kept the dress she was wearing when OSG raped her.

That's what I remember too.

[bob]

Since this is civil, does this refusal allow negative inferences to be drawn?

Yes, for this proceeding. (And, of course, proceedings aren't legally binding on anyone's opinion; for example, feel free to describe Rittenhouse as a murderer, even if the jury didn't convict him.)

And Klayman how well refusing to provide evidence (testimony, in Klayman's case) went over when he did something similar during his divorce.

[Flatpoint High]

he did it.png (66.75 KiB) Viewed 4761 times

[AndyinPA]

Does that imply that plaintiff has a rapekit evidence to back up the accusation? Or is it a Clinton-style redo all over?

IIRC, she kept her dress.

And I think with what they are doing with DNA these days to find criminals, Mary's DNA would help.

[Ben-Prime]

Does that imply that plaintiff has a rapekit evidence to back up the accusation? Or is it a Clinton-style redo all over?

IIRC, she kept her dress.

And I think with what they are doing with DNA these days to find criminals, Mary's DNA would help.

Imagine which male relative TFG would try to throw under the bus if they did a familial comparison and found it matched enough that the DNA on the dress belonged to 'a Trump'.

[RTH10260]

Trump seeks to toss E. Jean Carroll sexual assault lawsuit and claims new New York law is unconstitutional

By Tierney Sneed
Published 1:15 AM EST, Thu December 22, 2022

(CNN) — Former President Donald Trump asked a federal court on Wednesday to dismiss the sexual assault lawsuit, brought under a new state law in New York, that was filed by the ex-magazine columnist who has accused Trump of rape.

Trump alleges in the motion to dismiss that the law, the Adult Survivors Act, runs afoul of the New York state constitution’s due process protections. He also called the additional defamation claim the accuser, E. Jean Carroll, is bringing in the lawsuit “baseless and legally defective.”

The Adult Survivors Act went into effect on November 24 and Carroll brought the suit against Trump that day. The law gives adult survivors of sexual assault one year to file lawsuits against their perpetrators, even if the statute of limitations on their claims has expired.

The lawsuit is the second Carroll has brought against Trump, but the first to seek to hold him accountable for battery for allegedly raping Carroll in the dressing room of a New York department store in the mid-1990s. Through his attorneys, Trump has denied any wrongdoing.

In the new lawsuit, she is asking a judge to order Trump to retract allegedly defamatory statements he’s made about her and award compensatory, punitive and exemplary damages in an amount to be determined at trial.




https://edition.cnn.com/2022/12/22/poli ... index.html

[Kendra]

JUST IN: A judge has ordered the unsealing of key excerpts of Donald Trump's deposition in E. Jean Carroll's lawsuit against him.
https://storage.courtlistener.com/recap ... 5.15.2.pdf

[Tiredretiredlawyer]

[Kendra]

Trump team making a last-ditch effort to keep the deposition sealed. Unclear if it will be granted. https://storage.courtlistener.com/recap ... 5.29.0.pdf

[Suranis]

I'm sure 69 repetitions of "fifth" will be instructive.

[noblepa]

In a civil case, can a defendant be forced to give a DNA sample? DNA merely identifies an individual.

In a criminal case, a defendant can be required to submit to being fingerprinted, even if those fingerprints prove that his hand was on the murder weapon and in the room where the murder took place. Fingerprinting is not considered a violation of one's fifth amendment rights against self-incrimination.

I don't see how DNA is any different in this legal context.

[Tiredretiredlawyer]

I'm sure 69 repetitions of "fifth" will be instructive.

Just think of the questions asked before the Fifth was invoked. Those should be entertaining. How many times did he invoke the Fifth? Anyone?

[SuzieC]

In a civil case, can a defendant be forced to give a DNA sample? DNA merely identifies an individual.

In a criminal case, a defendant can be required to submit to being fingerprinted, even if those fingerprints prove that his hand was on the murder weapon and in the room where the murder took place. Fingerprinting is not considered a violation of one's fifth amendment rights against self-incrimination.

I don't see how DNA is any different in this legal context.

I hope the lawyers deposing him served him multiple glasses of diet coke. And swiftly got them to the nearest lab.

[Kendra]

If anyone is interested, it's too long and too complicated for my feeble brain

[RTH10260]

unrolled, text only

Thread Reader
Jennifer Taub

Court is in session for en banc oral argument in Trump et al v. E. Jean Carroll

1/
Chief Judge Blackburne-Rigsby sets out procedural history of how this came to the D.C. Court of Appeals

I won't repeat that here, but in sum. This began as a case brought by Carroll against Trump in state court in NY, then removed to Fed Court . . .

And . . .

2/
After Donald lost at SDNY, he appealed to the 2nd Cir. (That's why his name appears first in the caption).

Second circuit certified question to D.C. Court of Appeals. Question is whether Donald was acting in the scope of his employment (as POTUS) when he spoke about E. Jean

3/
First up here is Mark Freeman on behalf of the Department of Justice.

Notably, DOJ is taking Donald's side here and is arguing that he was acting in the scope of his office of employment

4/
Judge Easterly interrupted and asked whether the D.C. Circuit caselaw is an accurate summation of the District of Columbia's respondeat superior law.

She is asking about the Ballenger which looks at the restatement 2nd (a summary of common law from 1954).

5/
The chief judge says why not just rely on the Restatement Second of Torts instead of Ballenger?

Now Judge McLeese asks Freeman for DOJ to reconcile the restatement and Ballenger (re objective inquiry vs. a subjective inquiry)

6/
By the way, for the non-lawyers out there, respondeat superior is a theory under tort law which allows a cause of action against an employer, for example, based on the harmful actions of the employee.

7/
Easterly makes a point that the employer is not responsible for the actions of an employee off on its own personal frolic.

Really, the language "frolic or detour" is often used in the case law

8/
Easterly is suggesting or asking the DOJ lawyer why Ballenger would apply given that in that case, there was an affidavit there about what the congressman meant.

9/
If this court decides that Donald was acting in the scope of his employment then the original defamation case will be likely dismissed against him.

However, remember there is a new case E. Jean filed in 2022 re fresh defamation and under the adult survivor's act.

10/
BIG. Easterly says this court has ONLY upheld jury verdicts that someone was "as a matter of law" acting in scope of employment. Has NEVER directed verdict for employer.

"We don't have any facts in this case. We only have a bare complaint. We don't . .have an affidavit."

11/
Chief Judge says they could clarify what the law is. She does not seem inclined to APPLY the law here without having the full factual record.

12/
The DOJ lawyer agrees that he is not asking this. Instead, he is looking for clarifying the law.

And that denying allegations of wrongdoing is part of an elected officials job.

13/
Judge Shanker says 228 is what the District has adopted. He is parsing the "at least in part" language, but that Carroll relies on subsection 2.

14/
Here's subsection 2 228:

"Conduct of a Servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master."

15/
I think they mean the Restatment second of Agency. Not torts.

Someone misspoke.

16/
Seems like DOJ wants a special rule from this court for public officials.

Judge Easterly, "I'm not understanding what needs to be clarified."

17/
Judge Howard is looking for an answer from Judge Shenker.

DOJ talks about 3rd restatement which this court has not yet adopted. . .though.

18/
The DOJ lawyer says that many courts have decided that "any" intent to server the employer makes the employer liable

19/
Here's the relevant restatement second text

20/
Judge Deahi is again, like the other judges, with the question of why are we deciding this now? This is a question of fact, not law.

21/
Judge Alikhan (and others) have pointed out that it's also not their role to interpret the Westfall Act.

22/
DOJ lawyer said that Ms. Carroll "failed to raise a material factual dispute" and that the burden is on her under the Westfall Act.

23/
Judge McLeese, asks DOJ to clarify. Are you asking that the question be decides as a matter of law, we should apply the burdens imposed by Ms. Carroll under the Westfall Act?

24/
HMMM. DOJ lawyer backs off that.

But, do be clear, he does want this court to decide this case as a matter of law.

25/
So, DOJ lawyer does say, that the Westfall Act does provide immunity for employee -- like Donald (and often at the motion to dismiss phrase) case is thrown out and DOJ has to defend.

26/
But Judge Easterly said not always. Court had an evidentiary hearing in a Westfall case. "It's certainly not forbidden." (Not that they should apply Westfall here).

27/
This is utterly fascinating . . . .

28/
Judge Deahil quotes Scalia, you would almost never direct verdict in case of an employee intentional tort (court decides as matter of law without trial)

Said if employer tells employee repo this car, and punch the person if they don't give it to you, then directed verdict

29/
Blackburne-Rigsby said in this case, employer is not being super helpful.

It appears like US is trying to take responsibility for the employee, Donald, but reality, here, there would be no recovery, because the US has not waived immunity for liability for defamation cases.

30/
DOJ lawyer said, true, but in other types of torts, not defamation, the government would be stepping up and taking responsibility and there would be recovery.

31/
Now we have Alina Habba on behalf of Donald. She referred to her "colleague". Hmmm. I don't see DOJ as her colleague.

32/
One of judges asked her a question and Habba is blowing it. The judge wants to ask about the respondeat superior.

Habba wants to argue Westfall Act?

OMG

33/
Judge Shanker asking "are we an internalization jurisdiction or are we a restatement jurisdiction"?

"I don't understand the statement in your reply brief."

34/
Judge Beckwith asks "is there any situation" when a President was speaking to the press when it would NOT be in the scope of his employment.

35/
"We don't dispute that (a) is satisfied" we are asking a bout (c) said Judge Alikhan

36/
Boom! Easterly, but "how do we know that. All we have is a complaint."

37/
Easterly said a court would look at complaint "in the light most favorable to the plaintiff." She would need discovery and would at least go to summary judgment. And even then let jury decide unless we can say for sure he was acting out of private, personal tortious motives

38/
Abba is not very smart, at all.

That's the tweet. She's messing this up for her client. A shame.

39/
Chief Judge, "Since you don't feel that you should be here . . we are also grappling with what our appropriate role is here. You seem to be suggesting here that the law of" DC of respondeat superior is clear?

Are you asking for a special rule for public officials?

40/
She just called DC a state . . .

41/
Judge Deahl:"He's at a press conference. Anything he says goes?"

Is that the position? But what if not in response to a question. What if no question about the topic was posed?

Abba said, no. Dividing line is responsibve to a question of public interest."

42/
Did Abba just say that? She seemed to say that as a matter of DC law, if a President voluntarily speaks about a topic, then that act is not imputed to his employer.

There were instances when he did that very thing re E. Jean.

43/
Good point from Judge Alikhan said couldn't Congress amend the law if it's unclear?

If Congress put the burden on us to say what the state law is, we should not tailor our view of the law to the specific narrow Westfall Act situation.

44/
Abba just refused to answer the question about the recent statements made by Donald are different.

45/
Judge Alikhan wants to know whether he's "serving any master" when he makes the alleged defamatory statements when he was not president.

She points to subsection c

46/
Here's the restatement again for those following along at home

47/
Judge Deahl says, you could concede that his predoniment interest was a personal one?

Do you have a view as to the degree they have to be motivated by purpose of serving the employer?

48/
If a statement is 99.99% personally motivated? And, it's only point zero one percent in interest of employer, does it point it into the scope of employment box?

Abba said, yes.

49/
That was Judge Easterly. And then she said but that would get us into the "internalization" approach and we do not follow that doctrine in DC.

50/
Habba is so stupid that she then said to look at the facts. That's not the argument she was supposed to make here. And then said that's why we have the Westfall Act

51/
Judge Howard said "Is it your position that at anytime a president or politician generally is asked a question by . . someone calling themselves the press . . it now fits the public purpose."

Abba said even if it's a constituent. Even then.

52/
Here we go. Joshua Matz for E. Jean Carroll.

53/
Image
Matz says just follow the respondeat superior rule applied in DC.

Chief Judge Blackburne-Rigsby interrupts to ask whether the court has moved away from respondeat superior to the internalization doctrine.

54/
Matz said while in the 1970s and 80s it looked like the court was moving in that way (where forseeability mattered), but he's saying that now forseeability is part of "on duty" and not part of the purpose analysis.

55/
Matz is helpfully walking through the precedent on burden or proof and procedure when it comes. This is worth listening to this. It's at around 11:10 am for later viewing.

56/
Matz contends the court can decide this question as a matter of law.

57/
To simplify his reasoning, he's saying because Donald had the DOJ certify that he was acting in the scope of his employment when he made the statements about E.Jean, then the burden shifts to her but with all the inferences in her favor. . .

58/
Judge Easterly said she does not want to distort their respondeat superior law, to hold employers responsible when they have control over employees, but NOT when employee is on an independent harmful tortious frolic.

59/
Matz says he would prevail under any standard, even the even "any iota" standard.

Meaning the point zero one percent. . .

60/
Chief judge asks him say why there are enough facts to rule.

Where there is a previous course of dealings, personal history, it's more reasonable to infer personal motivation

61/
Also, he said when there is a modus operandi. Points to complaint. Donald has a long history from before and since taking office of personal attacks against women who accuse him of sexual misconduct.

Tends to suggest the motivation is not relating to job

62/
Judge Shanker asked Matz what Donald could have said would be defamation, but would have been within the scope of employment

Joshua said for example, if he had not had the comment that she was not her type or that she had been paid off by third parties.

63/
Matz said if Donald had ONLY said I've never met her and look, she's writing a book, that would not be enough factual basis to support the inference that he was acting for his private motives.

64/
Judge McLeese, said he agrees with Matz on procedure.

"We are only going to answer questions of law, for sure." And expertise is on DC law, not Westfall Act.

We don't have discovery. All we have are allegations in complaint and filing. Similar to a motion to dismiss.

65/
He is saying what we can do is to clarify DC law re a point of uncertainty, but the federal courts do your work on Westfall.

Asks Matz if that is "incorrect."

66/
Matz said court could take that approach to rephrase the question, however, he thinks court should actually answer the question that came to the court.

67/
Great arguments at around 11:30 am. from Matz about why this court should for four legal and policy reasons decide the question and not dodge it

68/
Including among reasons is that federal courts are struggling to apply DC law in these types of cases, and that the parties are in advanced age and Donald has abusing prolonged this matter for years already and to dodge the question would add more years on to the litigation

69/
My apologies. I keep typing Abba instead of Habba.

70
Friends, who are listening and have their heads aching, I have sympathy. This entire case is extremely complicated procedurally. . .would make a fascinating study for law students.

71/
Habba
Matz wants them to answer the certified question. "Under the laws of the district" were the statements "within the scope of his employment."

72/
Judge Shanker asked what if we rule in your favor and say he was acting within scope.

What if Donald after that says I did this for my employer?

73/
Did I hear this right? Matz responded that based on the discovery (such as deposition which is still under seal), he does not think that will be factual outcome.

In other words, do they have some admissions that this was very personal?

74/
Matz says he believes DOJ is looking for an internalization approach. He also says he does not think DOJ should get another bite of the apple to withdraw the certification of Donald's action as within scope.

75/
Whew. Amazing argument.

76/
Next up is counsel speaking on behalf of the AG for the District of Columbia.

She says apply the ordering 12b motion-to-dismiss standard (based on the Jacobs case).

"These statements were made out of a personal motive. Out of a selfish motive."

77/
For, not from
• • •

[Kendra]

Trump's attorneys filed a motion yesterday to pause discovery in the E. Jean Carroll rape case.

When they tried the same in Carroll's defamation case, the judge scathingly rejected it—in a ruling slamming what he described as delay tactics.

Background https://lawandcrime.com/high-profile/fe ... next-week/

[chancery]

The motion to stay discovery was actually filed on December 21. The brief quoted from is Trump's reply brief

The reply brief is posted on Courtlistener here (Docket Entry 35): https://www.courtlistener.com/docket/65 ... er_by=desc

The opening brief is Docket Entry 23, and Carroll's opposition is Docket Entry 27.

The reply brief appears at a quick glance to be a competent piece of work -- if you completely ignore the context and posture of the particular action. If you do consider the context, the motion is kinda stupid and likely to be given short shrift by Judge Kaplan, with some snarling about delaying tactics, but I doubt that it's sanctionable.

[Maybenaut]

In a civil case, can a defendant be forced to give a DNA sample? DNA merely identifies an individual.

In a criminal case, a defendant can be required to submit to being fingerprinted, even if those fingerprints prove that his hand was on the murder weapon and in the room where the murder took place. Fingerprinting is not considered a violation of one's fifth amendment rights against self-incrimination.

I don't see how DNA is any different in this legal context.

Late to the discussion, but as I understand it, in the criminal context at least, law enforcement doesn’t need a warrant for fingerprints and voice examplars because they are not intrusive. That is, they don’t need to stick a foreign object inside your body to obtain the sample they need. But they do have to do that with blood and DNA so a warrant is required for those things.

It may not be as simplistic as that, but that’s the gist.

[Kendra]

A federal judge has denied Donald Trump's latest effort to dismiss
@ejeancarroll
's lawsuits against him related to her claim that he raped her two decades ago.

https://storage.courtlistener.com/recap ... 5.38.0.pdf

[Kendra]

JUST IN: After a false start earlier in the week, a federal judge just re-ordered the *unsealing* of portions of Trump’s deposition transcript in the E. Jean Carroll libel lawsuit.

[Suranis]

Here it is, starts at page 15.

https://d3i6fh83elv35t.cloudfront.net/s ... sition.pdf

[Flatpoint High]

Here it is, starts at page 15.

https://d3i6fh83elv35t.cloudfront.net/s ... sition.pdf

the bobbing and weaving is something

[RTH10260]

Judge calls Trump’s attempt to dismiss E Jean Carroll rape lawsuit ‘absurd’
Ruling made in second case brought against former president by writer who alleges he sexually assaulted her in Bergdorf Goodman

Reuters in New York
Fri 13 Jan 2023 21.57 GMT

A judge on Friday rejected as “absurd” Donald Trump’s attempt to dismiss a lawsuit from the writer E Jean Carroll, who alleges he raped her in a department store changing room in New York in the mid-1990s.

Carroll has sued Trump for defamation, for remarks while denying her allegation including that she was not his “type”.

But the lawsuit which the New York judge, Lewis Kaplan, refused to dismiss on Friday was brought against the former president under the Adult Survivors Act, a new state law which gives adults a one-year window to sue alleged attackers even if statutes of limitations have expired.

In his ruling in Manhattan, Kaplan said there was no merit to Trump’s argument that Carroll’s claim must be dismissed because the law denied him due process under the state constitution.

The judge also said state law did not require Carroll, a former Elle columnist, to prove she suffered an economic loss from Trump’s comments, as Trump had argued.

Alina Habba, a lawyer for Trump, said “we are disappointed with the court’s decision” and planned an immediate appeal.



https://www.theguardian.com/us-news/202 ... urd-ruling

[RTH10260]

Under oath, Trump hurled insults at woman who alleges rape

LARRY NEUMEISTER
Fri, January 13, 2023 at 7:46 PM GMT+1

NEW YORK (AP) — Questioned for a lawsuit, former President Donald Trump angrily hurled insults and threatened to sue the columnist who accused him of raping her in a department store in the 1990s, according to excerpts of his videotaped testimony unsealed by a court on Friday.

Portions of his 5 1/2-hour October deposition in a lawsuit filed by columnist E. Jean Carroll were released publicly after a federal judge rejected his lawyers' request that it remained sealed.

“She said that I did something to her that never took place. There was no anything. I know nothing about this nut job,” he said, according to the transcript.

The excerpts reveal a contentious battle between Trump and Roberta Kaplan, a lawyer for Carroll, who questioned him as Trump called the former longtime Elle magazine columnist the perpetrator of “a complete scam” in which she described the rape as she “was promoting a really crummy book.”

“I will sue her after this is over, and that’s the thing I really look forward to doing. And I’ll sue you too,” he told Kaplan.

The release of excerpts from the deposition came the same day as Judge Lewis A. Kaplan, unrelated to the lawyer, also refused a request by Trump’s attorneys to toss out two lawsuits by Carroll alleging defamation and rape. An April trial is planned.



https://www.yahoo.com/news/judge-lets-w ... 15338.html

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