In This Episode
E. Jean Carroll and attorney Robbie Kaplan join us to share the process and aftermath of Carroll’s defamation lawsuit against Donald Trump– in which a jury just awarded her $83.3 million. What was Trump’s vibe in the courtroom? Will he actually pay up? And what does E. Jean plan to do with all that money? Melissa, Kate, and Leah get all these answers and more.
- Read the NYT’s piece on Robbie Kaplan: “In Trump’s Bitter, Yearslong Brawl With Roberta Kaplan, He Keeps Losing”
- Read E. Jean Carroll’s 2019 book in which she tells her story: What Do We Need Men For?: A Modest Proposal
Melissa Murray [AD]
Show Intro Mr. Chief Justice, may it please the court. It’s an old joke, but when an argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.
Leah Litman Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We’re your hosts. I’m Leah Litman.
Kate Shaw I’m Kate Shaw.
Melissa Murray And I’m Melissa Murray. And today, we are delighted to be able to bring you a very special episode about the case that has culminated in some accountability for Donald Trump.
Kate Shaw And that accountability is really important, both in its own right and because we don’t know when or if that might happen again. Next week, the Supreme Court will hear arguments about whether Trump is disqualified from future office because of his role. In January 6th. We have a special preview episode in store for Monday about that, but we don’t know what the court will do in that case, and we don’t know when and even whether the multiple criminal cases pending against Donald Trump might actually go to trial. So we have all of that uncertainty. And because, you know, if you’re listening, you know, this is a Supreme Court podcast. And so the vibes right now are often very, very bleak. But it is an enormous treat and a real privilege to be able to cover some genuinely good legal news occasionally. And that’s what we’re going to do today.
Melissa Murray So in today’s bonus episode, we’re talking about the case that has gone to verdict not once, but twice, and both times has offered the promise of some accountability for Donald Trump. And that, of course, is the writer Jean Carroll’s defamation lawsuit against Donald Trump. On Friday, January 26th, the jury awarded $83.3 million in damages to E Jean Carroll. 65 million of those were what’s known as punitive damages. And we’ll talk about that in a minute. But suffice to say. This is bigly legal liability for our favorite Bigly president.
Leah Litman And to discuss the lawsuit and the jury award we are beyond thrilled to have with us today both E. Jean Carroll and her lawyer, Robbie Kaplan of Kaplan Hecker. And think so, E. Jean And Robbie, thank you so much for joining the show.
Robbie Kaplan It’s a pleasure.
- Jean Carroll Thank you for having us.
Kate Shaw So first, I think it might be useful to start with some basic groundwork for our listeners about the case. There were actually no multiple cases revolving around the underlying allegations here and multiple stages of the cases. And since we have the luxury of a bit of time, we thought we might ask you to walk through that background and along the way, maybe to touch on some of the legal questions that were raised and resolved as the case made its way to last week’s award. So to start, E. Jean, just in case any of our listeners aren’t familiar with it, could you tell us a little bit about the origins of the case?
- Jean Carroll Yes. In 1996, I met Donald Trump outside of Bergdorf’s department store, and he recognized me and said, hey, you’re that advice, lady. I said, hey, you’re that real estate tycoon. He said, come help me. I need to get a present for, a girl. And I was delighted because I’m an advice columnist. I love to help people choosing a president right up my alley. It, started out as a very friendly, very joshing, hilarious. Give and take. Witty, badinage is what you call it. As we went through the store, we unfortunately ended up in the lingerie department, and he sexually assaulted me. And that’s where it’s stayed, because Donald Trump at the time, was a very well known man about town. One of the most famous things about him is that he had a lot of lawyers. When I told my two friends, one friend told me at least, the writer and journalist. And when I told her almost immediately after it happened, she said, you’ve got to go to the police. I’ll go with you. E. Jean Carroll, this is it. This way. Let’s go to the police. I said I couldn’t possibly go to the police. What I did is I went home the next day or two days later, I told my dear friend Carol Martin at work. I said, Carol, I have something to tell you. And we went to her house after work. I told her what happened, and Carol said. Whatever you do, do not go to the police. He has 200 lawyers. He will bury you. I ended up following Carol’s advice because, number one, I knew I’d be fired. I was working for Roger Ailes at the time and America’s target. I was working for Hearst at Elle magazine as an advice columnist. I had my own talk show. I knew if I reported anything to the police or went public at all, I would lose everything. I lose my job. I lose every bit of credibility I ever had because I didn’t think anybody believe me. So they’re arrested. Then? I’m on the road writing a book. Because so many women have been complaining about men to my column. And I thought, let’s just find out. And they began telling me such fascinating, exuberant stories about men entrusted me so deeply with their stories that I began to look at myself as a hypocrite. Like, you know, they’re telling me about their lives as men. And I have shut up all these years. And I am 76 years old. And by God, I think it’s time that I came forward. So in this book I was writing, which I had never intended to ever tell the story. I told the story in nine pages. The book is 274 pages. This is nine pages. I published it and all hell broke loose. That’s the beginning of that.
Robbie Kaplan You just heard all of E. Jean’s direct examination guys.
Melissa Murray Well, with that in mind, since that was the direct examination in which you laid out the facts. E. Jean, I wonder, Robbie, if you wouldn’t mind filling in for our listeners the procedural background for this particular case. And that means maybe backtracking a little and saying something about the earlier defamation verdict for $5 million, and how that earlier verdict relates to this whopping $83.3 million verdict that you received on January 26th.
Robbie Kaplan So it’s complicated. Let me try to make it as simple as I can. Basically, after E. Jean told her story in her book, Donald Trump, then President Trump went on a three day. We call it a defamation rampage in which he said that she was lying, that he never met her, that she was making it all up, that she was doing it to sell more books, that she was doing it as part of a political conspiracy with the Democrats. That she was nuts.
- Jean Carroll Yeah.
Robbie Kaplan And then he added insult to injury at the end on the 24th of June by saying, and I’ll say it with great respect, she’s not my type. Those were the original statements that led to the first lawsuit that we brought in, 2019. And that was the original lawsuit we we brought in that fall. We call that case Carol won, obviously, because it was the first case, but because that case had lots of technical, complicated issues having to do with federal power and whether we could sue Donald Trump based on statements he made while he was president. That case was was slowed down considerably. And we kind of went on a tour through the various courts, to the second well, originally in state court was originally a state court that in federal court, then at the Second Circuit and at the D.C. Court of Appeals, then back to the Second Circuit, etc., and as a result, we brought a second one. As a result, we just happened to bring the second case because New York, two Thanksgivings ago, passed a law that went into effect, two Thanksgivings we called the Adult Survivors Act, which said that women, it really was passed exactly for someone in the jean situation that said, women like E. Jean, who had been assaulted sexually years ago and didn’t bring claims because of the ways that society looked at those issues back then, had a one year free window to bring claim. So so it’s getting started. Two things going to go. It ended last Thanksgiving. We brought that case. We also tacked on a defamation claim because in October of 2022, Donald Trump had made another defamatory statement while the case was pending. So we added that in and that was the case. That case moved to lightning speed because all the discovery was already done. There were no new issues.
- Jean Carroll Yeah.
Robbie Kaplan And that was the case that was tried last spring. So before a jury last spring, nine person jury, same judge, Judge Luke. And we had, a defamation claim and the underlying claim for sexual assault. We won both of those. The verdict in total was $5.5 million. But what was left as a result was what to do about the original case. And that’s from for damages purposes. Even putting aside punitive damages, it was a much more valuable claim because it was those original defamatory statements for 2019 that really caused the damage to Egypt, that really destroyed a reputation and caused this mob of horrible, horrible, hateful, vicious people to follow her. So that’s the claim we just tried. But because liability, both on sexual assault and on defamation had already been established and the defamatory statements from 2019 were essentially the same as a defamatory statement for 2022. The only issue before the jury was compensatory and punitive damages. And we want to get. Nine person jury. The first jury was six men. Rewind this jury with seven men. Two women.
Leah Litman Got it. I just want to know, kind of out of interest to our listeners, you know, in the course of the litigation, you know, in Carol one that, as you know, went between different courts, had many different stages. It actually resulted in a Second Circuit decision saying that the president of the United States is an officer for purposes of the Federal Tort Claims Act. And of course, whether the president is an officer is a question in the Trump disqualification case, though, there the question is whether the president of the United States is an officer for purposes of section three of the 14th amendment. But, you know, this case could have larger spillover implications or, you know, potential spillover implications to the other cases as well. And, you know, because there are.
Melissa Murray Only if we’re all textualist, that’s true Leah.
Leah Litman That’s true.
Kate Shaw And there was also right, there was an immunity argument as well. Right. Which ended up the conclusion was that he had waived it by not raising it early enough. But as Trump has essentially in every venue, civil and criminal, asserted that he is absolutely immune from any kind of liability for anything, essentially that occurred during the period of his presidency. He made that same argument here, but there wasn’t. Correct me if I’m wrong, Robbie, but as I recall, there wasn’t a merits determination in the decision. By the Second Circuit, after a beautiful argument by your partner, Joshua matz, friend of the show, was that that argument had been waved because it wasn’t raised early enough.
Robbie Kaplan That’s correct. The question before the secretary was whether basically, after having waived it, Trump then argued that it was unbelievable and that you want to kind of go, takes backseat. And the Second Circuit said he couldn’t have it. But it was interesting. He didn’t just waive it by not asserting it early enough in the state court case in order to avoid a stay. He literally said his lawyers literally said in papers, and you can sue me for this when I’m no longer president.
- Jean Carroll Yes. Right.
Robbie Kaplan So the one thing that’s true from everything you guys have just been saying is that there is not a lot of coordination. Let me put it that way. Among the Trump lawyers in the various cases, in terms of consistency to say the least.
Leah Litman To say the least, or sometimes among the lawyers in a particular case. As we will get to when we discuss some of the, post verdict motions, inquiries, just asking questions in the form of letter to courts. But we’re getting ahead of ourselves.
- Jean Carroll One day, Libby skipped over. She got a huge win in state court when she won the right to sue a sitting president. That was a very big deal, I remember that, I remember, yeah, that was a big win. And that was the first time I’d seen, Rabi argue in front of a judge. I was sitting behind her. She stood up and I watched. I was couldn’t see her face. What I could see were her hands, which she kept as a. And as she went on, her hands turned into face. And at the end she held the courtroom in regret. And they were like this. Her knuckles were white. She was. She gave such a great, impassioned speech. She almost got a standing ovation when she was gone. And then when she did sit down, she turned to Matt Craig, the young associate, and she said, Matt, I’m sorry, I forgot to look at your notes. We had worked for days on note and Robbie said, I’m sorry, I forgot to look at your notes.
Robbie Kaplan So you guys just heard what you did is so famous as a gonzo journalist because that was about.
Leah Litman Well, you know, as E. Jean is so aptly describing, you know, there were many monumental rulings during different stages of this case. And of course, like Robbie has gotten so many important wins as part of this case, leading to the New York Times headline about the latest part of the case being, quote, in Trump’s bitter years long brawl with Roberta Kaplan, he keeps losing. That was the headline. So, Robbie, how does it feel to be Trump’s personal enemy number two, right behind Taylor Swift?
Robbie Kaplan To be honest, it’s an honor. Obsessed. I know Leah is obsessed with Taylor Swift, so I obviously I have to come after Taylor Swift, but the fact that and this really happened at the trial to the fact that we were able to get under his skin the way that we did, and it wasn’t just me as my partner, Sean Crowley as well, who, frankly, was crazier than I was during the trial. But the fact that we got so deeply under his skin, I think, is really helpful because I think it’s Egede has explained she should put it in her own words. It really look like the emperor with no clothes in that courtroom. I mean, you really saw how he himself only has his power from the crazy people who surround him. And when you go into an atmosphere where there are crazy people and there are rules and there’s a judge and there’s truth, his clothes all fall away. And again, I don’t want to have the image in my head, but do you understand what I’m saying?
Melissa Murray Well, so for our listeners, Robbie has not just made a huge sport of dismantling Donald Trump. She’s also had an enormous career battling other injustices, including the Defense of Marriage Act. So I think I first saw you argue in the Supreme Court in 2013 when you litigated Edie Windsor’s case, dismantling that provision of the Defense of Marriage Act. So, again, a long, long career slaying dragons. But back to this case. We all likely remember Donald Trump’s Access Hollywood tape, in which he bragged to Billy Bush, the Access Hollywood anchor, that women just let stars grab him by the whatever because they’re stars. And that’s what you do. But don’t take my word for it. Let’s let’s roll the tape.
Clip I don’t need to wait. And when you’re a star, they let you do it. You can do anything. Whatever you want. Grab them by the pussy. I can do anything.
Melissa Murray So, Robbie, in a deposition, you asked Donald Trump about this tape and whether or not the statement was accurate. And his reply was this.
Robbie Kaplan And you say it again. This has become very famous in this video. I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the pussy. You could do anything. That’s what you said right.
Donald Trump – Clip Well, historically, that’s true with stars.
Robbie Kaplan It’s true with stars that they can grab women by the pussy.
Donald Trump – Clip Well, that’s what it’s. If you look over the last million years, I guess that’s been largely true. Not always, but largely true, unfortunately or fortunately.
Robbie Kaplan And you consider yourself to be a star.
Donald Trump – Clip I think you can say that, yeah.
Melissa Murray So at least 26 women have publicly accused Donald Trump of sexual abuse or sexual harassment. And Business Insider and other publications have enumerated all of these women. Among them there is Jessica Leeds, who testified at your trial. Natasha Stoyanov, who also testified at the trial. But there’s also Ivana Trump, Donald Trump’s first wife, Kristin Anderson, Tasha Dixon, Samantha Hawley. I can’t even go into all of the names. And of course, there is E. Jean. So what goes into your decision to bring a case like this against someone who is the sitting president of the United States at the time, and who obviously has a long history of somehow being caught up in these allegations, but never actually managing to be held accountable.
- Jean Carroll What went into my decision.
Melissa Murray Or both of you to to collectively decide that you were going to bring this case and that you were going to invest a lot of resources into seeking accountability this time?
- Jean Carroll It sounds strange within. I’m going to exaggerate slightly here, but the minute within a couple of minutes of meeting Robbie Kaplan that had decided that the Harvard researchers had proved that when you meet somebody for a job interview, you decide whether you’re going to take the job as you’re shaking hands. That’s how quickly these decisions are made. I’m not even aware of how quickly I made my, but I think it was within a couple of minutes of meeting Robbie, her joy and excitement. She loved the law so much, I just trusted her. She was full of, zazz in a trustworthy way. It was just. That’s it. I just knew it. I just knew it. That’s how fast I made the decision. Robbie made the decision fast, too, because she said, I have the papers for you to sign this afternoon before I left, remember? Yeah.
Robbie Kaplan And I think from my perspective, actually, there’s some overlap with Windsor in the sense, I mean, they’re very different people, but in the sense that I kind of instantly after listening to it, it was instantly obvious to me that this was a very powerful case. To explain to the public, which I think we’ve now done, what kind of man Donald Trump is and that the, the facts of, of E. Jean’s case, the fact that she waited so long but that she had told two friends, very credible people right away the fact that she really had zero interest in Donald Trump. Like, I don’t know how exactly to put it, but Jean had plenty of friends, plenty of boyfriends, plenty of kind of social success. She was she didn’t need Donald Trump for anything. And it really was just a lark that afternoon. Take him around the store. But I’ve and as you’ve just heard, she’s so charming and so beautiful and so sophisticated and smart. I just thought she was the perfect person to explain this. This tell her story. I believe you instantaneously. I mean, when you think about their story, his story, I mean, it kind of makes no sense. In 1996, E. Jean decided to make up a lie that she told two friends about. So years later, when he got elected to be president, which no one was thinking in 1996, she would use it. Or or alternatively, sometime after he was elected president, she, Carol and Lisa got together in a tripartite conspiracy to I’ll tell a lie and Carol Martin in particular, to perjure herself. Like, I don’t think so. So for all those reasons, I thought it was very, very strong case.
Kate Shaw Yeah. Well, I mean, the juries obviously did as well.
Melissa Murray [AD]
Kate Shaw I am curious between that initial moment where it was kind of, you know, this alchemical process, everyone realized that this was the partnership to bring this case and to try to seek accountability between that moment and, well, both. But in particular, the more recent award, there were five years, and it can’t all have been as sort of smooth and frictionless as that initial moment. Right? There must have been difficult moments along the way, even with these really significant legal wins in both state and federal court. E. Jean, can you talk for a little bit about what that process was like during the years between the initial decision to bring the suit and last week’s award.
- Jean Carroll Even though it’s a long period? Seems to me every single day there was something going on in writing letters, complaints, answering briefs as he hired, and fire lawyers. They bring on them. They all come in with new points of view, new ways to really pound us into the ground. So we had all these a new attorney, the, you know, waves of new attorneys coming at us. And it was new briefs, new letters, and to watch from steam run and dodge and run and dodge and Robbie relentlessly chasing down every single one of their wily moves, that was a thing that they took so long because they just they ran every defense they could, and Robbie countered every single one with a victory. I mean, there were so many victories in this case. So, you know, the five years were pretty triumphant. It was one victory after another. We won in four different courts. We kept winning these small battles, month in and month out. You know, so the five years went by in a big whoosh, but the last eight months had been tremendously filled with tension and excitement as we really came to the conclusion of this, this long push. As I said, if you could see Robbie today leaning back, you can see her. She’s leaning back in her chair, was there, leaning back in her chair. She is like taking her ease. Have you ever seen her so relaxed because she’s she’s out of court now. I stare at her, I think. Roddy, what the hell is going on? She’s just, you know, for what? She’s catching a break. It’s been a long five years. I don’t know if she sees it as triumph after triumph. Is that how you see it, Robbie?
Robbie Kaplan I would say that I would note two things. So legally, I would say when the Second Circuit certified to the D.C. Court of Appeals, we weren’t super happy. We were. I think we were all comfortable that we would ultimately prevail. But we knew that was going to be a long delay.
Kate Shaw And wait, can I, Robbie, can I just interrupt just to explain? Right. For our listeners, the Second Circuit did this thing that I don’t know if you all were anticipating, I found kind of surprising, which is to ask the D.C. Court of Appeals, the local high court, to answer the question of whether or essentially the scope of employment law, basically under DC law, because the Second Circuit, the federal court in New York, didn’t view itself as the real expert on that question, it said the D.C. High Court was. And so that was a pretty long detour. Sorry to interrupt, Robbie.
Robbie Kaplan Yeah. And we knew it was going to be a whole nother round of briefing and argument. And so none of us were happy about that because we wanted to get get the thing going. So that was a little bit frustrating. Although ultimately Joshua had a brilliant argument there too, and we prevailed. This is what I’m going to say, I think was the hardest edging, which you guys just saw for yourselves, has a very hard time acknowledging pain and hurt and difficult things. And factually, the hardest part of this case, I think by far, was Aegean being able to acknowledge that Donald Trump, in assaulting our head, really hurt her, that he permanently impacted her life in very negative ways, that she still suffers, psychological consequences from what he did. And that was a long, hard process. And I have to say, our expert, Doctor Leslie Lebowitz really, really helped in that.
- Jean Carroll Really helped. And, yeah, really, really helped right up to the right before we went to trial, I was having a really difficult time facing, yeah, in court, and I lost my ability to put ideas into words. I couldn’t care what it was asking me. And this girl, we were preparing, and I couldn’t answer her because my language is gone. Doctor level to just go to the body. Tell Robbie you can’t breathe. You’re really, you know, just tell her how you’re feeling. And, Lebowitz turned me around and actually made it possible for me to get on the stand to talk. So, also, the minute Robbie suddenly got caught, the minute Robbie said this girl this morning, can you please spell your name for the court? That was it. I was ready to go. It was a very dark day when I didn’t think I could do it.
Robbie Kaplan This is in connection with the recent trial, because E. Jean was realizing that she was going to face him in person for the first time since 1996.
Leah Litman So, Robbie, you mentioned previously, you know the strengths of E. Jean’s case and claim. And I wanted to ask you about two elements of that, one about liability and the other about damages. And, you know, there was one event during the liability phase which is Donald Trump misidentified. Photo of E. Jean. So I was hoping you could tell our listeners about that and how that was kind of a big deal in the case on the liability front. And then second on, you know, the damages front. I mean, how did you keep track of and, you know, how are you still keeping track of like all of the defamation he did, you mentioned the defamation rampage. But like he kept saying stuff during the trial. I mean during the trial, he had, you know, days of like several posts that also seemed to implicate, the same underlying claim. So, you know, again, kind of like on the strength of the claim that like key kind of moment during the liability phase of misidentifying the photo and then just again, how do you keep track of all this defamation?
Robbie Kaplan The misidentification happened at the deposition at Mar-A-Lago, and it was pretty early, as I recall, in the deposition. Maybe we’ve been at it for an hour, mostly doing background stuff. And at one point I think I was getting him to identify the two defamatory statements. And at one point he said, oh yeah, there was this photo. Of edging of us or something like that. And I said, okay, I think I wasn’t. Everyone thinks I was like a legal genius. I was trying to trick him, I was it. You literally said, there’s his photo. And I said, okay, I think I have a copy of the photo. His ship. And I handed in the photo and I said, this is the photo. And he looked at it and he said, yeah, yeah, yeah. And then he pointed at Aegean and said, That’s Mala. And I was Marla, Marla maples, his second wife, and I was so shocked. But I tried to, like, not show my shock. So I said, what did you just say? Did you just say Marla maples? He said, yeah. And then Lena Haba, immediately interrupted and said, no, no, no, no, that’s E. Jean Carroll. And again, he still wasn’t clear exactly. And I said, oh, it’s Carol. And then it’s classic Trump. This was great. And my clothes are classic Trump. He looked and he said, oh the photo was blurry. It’s not a blurry photo at all. It’s a very clear photo of E.Jean, her then husband, Trump and Ivana. But it was classic him because that’s how he deals with things. He just makes up another lie. So we were able to play that video at both trials. Yeah. The jury, shall we say. I mean, I someone said they actually saw the looks on their faces this time when they watched it. It’s pretty powerful because you see, and in the clear lie here, of course, is him saying E. Jean’s not his type. And later in the deposition, two hours later, I think I said to him, so I take it all your former wives, all your wives are your type. And he thought about it for a second, said, oh yeah.
Kate Shaw Yeah.
Melissa Murray I mean, like even the fact that the lie is. Yes, that is a picture with me, my first wife, my mistress and another man. That doesn’t make any sense.
Robbie Kaplan She did look a lot like Marla Maples back then. Yes. I mean, it’s true they’re both beauty, former beauty queens. And there was a lot of that. There’s what he said, as you guys already pointed out on the Access Hollywood tape there. She just insulted us during deposition. Oh, he told me I wasn’t his type either. So he just he really can’t control himself. I mean, it’s, you know, that’s what Judge Kaplan said to him at during the trial, and it’s true. The damages. What are we talking about now? What was the second question, Leah?
Leah Litman How you keep track of all the defamation.
Robbie Kaplan Oh, yeah. So we you have this great team of paralegals here on their way to law school. They are awesome. Their job was to trap Donald Trump in real time. They did a phenomenal job of it. He couldn’t stop. And he even recorded a video, believe it or not, at a press conference during the trial, I said to the jury, he literally sat in this courtroom, left the courthouse, went a couple blocks away, recorded a video defaming her yet again.
Leah Litman It’s just.
Robbie Kaplan And then my favorite one is in one of his defamation. She said he’ll keep saying it a thousand times.
Melissa Murray Can’t stop, won’t stop.
Robbie Kaplan A thousand times. So when we were saying to the jury, the whole point or one whole big point here of punitive damages is to deter him from doing it again, the guy said he’s going to do it a thousand times. You gotta award a lot of damages. That was basically our argument. I mean, one of the things that we keep talking about it isn’t it, if this especially the second trial in a case in which our kind of our theory of the case was that Donald Trump is a bully who does not believe the rules apply to him, sitting in the courtroom every day and acting like a bully who does not follow the rules was not a great trial strategy. I mean, call me crazy. It was kind of an anti strategy as far as I can tell.
Kate Shaw Can I ask about that? I mean, so you’ve tried a lot of cases. Robbie, can you give our listeners a sense of just how outside of the band of normal defendant behavior, the behavior of Donald Trump during this trial was, you know, you were right there. How what was it like?
Robbie Kaplan So in any trial, let me put it, I’d say two weeks in any trial or any courtroom proceeding, argument, trial, anything, someone behaving the way Donald Trump behaved, making nasty comments to his lawyer, shaking his head when we were picking the jury, one of the questions was, who believes that the 2020 election was stolen? You raised his hand. Oh my God, making the jury look like acting like a seven year old boy who has behavior problems in elementary school. That’s how he was acting. So in any case, that would be way, way, way out of the norm. But here it was even more out of the norm because Judge Kaplan not my relation and not my mentor, but Judge Kaplan, is widely known to be one of the most kind of strictest, most formalistic, most concerned about the dignity of the court of any judge around and certainly any judge in the Southern district and everyone who appears before him, every lawyer who appears reform, unless they’re completely insane, is a little scared of him. I mean, you’d be crazy not to be. So I think one of the reasons why I’m feeling the way I am now is because even though there was no way that Sean probably or I was going to get to say anything disrespectful to Judge Kaplan, every time Harbor, Lena Harbor or Trump did it, you start my heart would start palpitating because I’d been thinking to myself, oh my God. Like, what if I said that to Judge Kaplan? She would kill me.
- Jean Carroll Right?
Robbie Kaplan And if it happened all the time, like the first day of trial, she said to him in a very nasty voice, like, I don’t appreciate the way you’re talking to me.
- Jean Carroll Yeah.
Robbie Kaplan I almost fell over. I said I can’t believe someone just said that to Judge Kaplan. And he, to his enormous credit.
- Jean Carroll Yeah.
Robbie Kaplan I mean, in one way, Trump was treated differently because any other litigant in that courtroom would have been sent a lock down. I mean, he threatened have a look at the very last day, but you would never get away with it in any other case. But but, Judge Kaplan, rightly so. One of the record. We wanted the verdict. They were trying to get a mistrial, which you understood. I said to E. Jean just before this call, I said, I finally realized today when I was taking a shower, which is where I have my best thoughts, that it was like being in the courtroom with a domestic abuser, but you kind of just never knew when he was going to blow up. The only difference here is kind of being in a place with a domestic abuser and having a policeman there, too. You almost have Judge Kaplan kind of, you know, not kind of, really maintaining order.
Melissa Murray It’s such a jarring example. Robbie. It sort of reminds me, like, when I was a kid, I went to a friend’s house, and the kids in that home just call the parents by the first name. And when I, you know, I first heard my friend talking to Jim and Cindy, I was like, oh, my God, is that on the table? You can talk to your parents like that. Oh my God, absolutely wild. So yes, I can imagine how jarring that is. As a lawyer who observes these norms of professional conduct, seeing someone who doesn’t care at all about them. But to the point about this massive award. So $83.3 million, 65 million of which are punitive damages. And as you say, these punitive damages are intended to both express condemnation of the offensive conduct and also deter the conduct going forward. But is there a question going forward about whether Donald Trump has the kind of deep pockets that are going to be necessary to fulfill this damages award, and we’ve become so accustomed to him avoiding and evading accountability? Are you worried that you will not actually be able to hold them to account on this verdict?
Robbie Kaplan Well, so that’s the question of the day. And I think the way to best understand is to think about what happened with the last verdict. So the last verdict was $5 million under the way the local rules work, he had to deposit $5.5 million, to put up a security. He did not actually get a bond. And in all the years I’ve been practicing law in New York City, I’ve never seen a defendant not put up a bond in order to stop enforcement while they appeal. Everyone’s gotten a bond. He instead decided to. And for a bond, just sort of understands he’d only have to put up $1 million. So rather than putting up $1 million to a bond company, he instead decided to deposit $5.5 million with the court. He said at the time it’s because he didn’t want to pay interest. Maybe, but I’ve never seen a really rich guy ever before who would want to tie up $5 million rather than tying up $1 million. I’ve just never seen it. So I suspect that what happened last time was that he was unable to get a bond.
Kate Shaw Just meaning the companies that supply bonds were unwilling to do business with him?
Robbie Kaplan Right. They were concerned about where the money was from. They were concerned about I don’t I don’t know exactly why, but he he couldn’t get a bond. So if that’s right and I don’t know if it is, we’ll we’ll find out. That means this time, if he wants to appeal and stop us from enforcing, he’s got to put up $90 million. I’m not even sure the Southern District is capable of holding $9 million. Sure, they never have before. So we’re going to, you know, in the next 45 days or so, we’re going to see what he’s going to do. He said he’s going to appeal. He said today he was interviewing new lawyers to do the appeal. Oh, so that presumably means he’s going to stop us from enforcing it again. In order to do that, he’s going to have to put up a lot of cash. I. As to whether he has it or where he’ll get it. I don’t know. We’ll find out. I mean, but once he does that, then I don’t have no worries because then the money will be if that’s what he does. The money will be sitting on account for us.
Kate Shaw Right. So then it’s not a question of if, but just exactly when this money will actually be in the hands of you, E. Jean. So at some future date, you will have, you know, this 80 plus million dollar award. So I guess I wanted to ask two questions. One, can you just talk generally about how how it felt to get that award from the jury, but also because you have mentioned in other kind of public statements using the money to do something good. Is there any chance you will give us some additional sense of what that might look like?
Robbie Kaplan Right. Just before she answers this one, you guys, you have no idea how much grief this answer has caused me.
Kate Shaw We have to ask Robbie.
Robbie Kaplan I know, but every day I get. I’m not exaggerating. 70 solicitations for money.
Kate Shaw Yeah.
- Jean Carroll And I said to E. Jean. I forward them all to E. Jean , I said E. Jean I’m spending an hour a day just forwarding emails. Go ahead an answer the question E. Jean.
- Jean Carroll I live very simply. I have a toaster in my hotel room. Wow. I should have a toaster when I go home. I’m like, I’m going to get a toaster.
Robbie Kaplan You should definitely get a toaster.
- Jean Carroll I’m gonna get a toaster.
Melissa Murray Dream big, E. Jean. Dream big.
- Jean Carroll That’s it. So I live very simply. I think of me as Henry David Thoreau out in my little hubble. That’s where that’s. So this enormous amount of money, is, startling. It’s hard for me to even think about it. And then we’re going to do some good with it. Ravi and I are talking. We have ideas. He staffed the Supreme Court. Took away women’s rights over their own bodies. So that’s just where I’d like to put the bulk. Where do you get women’s rights back? That’s it. How we do it now. We have to form a plan on how we do that. But I think we can do it.
Melissa Murray I’ve heard we can sponsor our own justices. I think we can maybe do that. Like sponsor a justice.
Robbie Kaplan That’s a thousand emails right there.
Melissa Murray I’m just kidding.
Leah Litman E. Jean since you are talking about this, like, high of the case and being in a position to support women’s rights after going, there’s this ordeal where you had to describe some of what was taken away from you because of your experiences with Donald Trump. I was hoping you could just, like, offer some words of encouragement, general wisdom, or advice to listeners who might be debating for themselves whether or when to stand up to a bully or you know how to do so, or what it feels like partially on the other side of it.
- Jean Carroll Oh, Leah, that is, its. I would have to meet each person individually. Standing up is not easy because you not only have the bully that’s trying to knock you down. You have all the bullies followers trying to knock you down. I cannot tell other women to do this. It is very, very difficult. You have to have ovaries of steel just to wake up in the morning and face the onslaught of hatred. It’s really amazing. But I’m fairly upbeat and enclosed. I know I’m receiving it. I do have, what are called intrusions from, you know, the memories thing. I do have a lot of, you know, hate in my work. So I have to be really careful in telling women to speak up. Before, I was always. You got to speak up. You got to speak up. You know, we all got to speak up. We all speak up. We can change the world. That’s bullshit. I love to see everyone speaking up because we could change the world. But doing it is another matter.
Melissa Murray I know that you don’t want to prescribe sort of categorical advice to all women, but we’re in this moment where there’s a real threat of political violence sort of emanating around this person. And given the nature of what you have done and how you have brought him to account in this way. As you say, you’ve received a lot of blowback, not just from him, but also his followers. Are there particular strategies that you and Robbie and the team at Kaplan Hecker have deployed to mitigate the risk of violence and the threats that you’ve received from those who feel especially attached to this person and his cause.
- Jean Carroll Oh, Robbie’s been all over that. She had security from, from the from within a day of me meeting her. She had her head of security comment. We had a nice, long conversation. No, Robbie was remember in the middle of the Charlottesville case when I met her. So she was in deep. In understanding the hatred and the vitriol that is aimed. She took a lot. So she said, I get Robin. I had the same. We’re just we’re just trudge on. We just trudge on as it we do stop and pause and think, oh, we just go ahead. But not all people can do that. It’s just if you’re a mother with young children, if you have a job, you’ve got to have, to hang on to if you need to support yourself. If you have an ailing parent, I would say you got to think twice. You got to think because they try to demolish you. This is why I’m so upset with the religious leaders in this country. There’s. Do they speak out? No. They’re so concerned about the sexual assault going in and they’re all religions. Do the business leaders speak out against sexual assault? No, because they’re having trouble with their with their HR departments. Are the politicians speaking out against sexual assault go because they don’t want to lose voters? So, you know, 180 year old woman and 135 year old. And surely the devil. We have to stand up. I mean, who nobody else is doing it.
Kate Shaw And just to provide another note of background for listeners who aren’t familiar with the reference to Charlottesville, this is another enormously important case that Robbie took on together with Karen Dunn. That was a civil suit brought against many of the white supremacist organizers of the Unite the Right rally in Charlottesville, Virginia, that results in a death and a number of injuries. And these dragons that Robbie has slain. We’ve mentioned a couple of the big ones. That’s obviously those are hugely important. That episode is chronicled in a chapter of Dahlia Lithwick, a wonderful book, Lady Justice, that we’ve mentioned before on the show. But listeners who haven’t read it should definitely pick up a copy.
- Jean Carroll Yeah. Dyer wrote very movingly about that.
Robbie Kaplan There’s also an HBO documentary in which I look completely terrible. The entire documentary but, called No Accident.
Melissa Murray I bet Donald Trump looked worse. Robbie. Don’t worry. You’re good.
- Jean Carroll Good.
Leah Litman So because we have referred, to them, I did want to note a little bit about the post verdict kind of letter exchanges and just speculating what might happen next in the case. So, you know, after the damages award came in, Trump’s lawyer filed a letter with the court suggesting the judge shouldn’t have heard the case for various reasons. You know, as Robbie was joking about earlier. One was the false suggestion that she and Judge Kaplan had had a mentor and mentee relationship when she was an associate at a law firm where he worked. Another was that one of the lawyers on the team had clerked for the judge. You know, neither of these things provided a basis for the judge to be disqualified.
Kate Shaw Wait interestingly, I thought there was never the argument that the shared surname was the basis for disqualification, which was a real restraint on the Trump team’s part, I thought.
Robbie Kaplan I guess I just you’re both Jewish with the name Kaplan.
Kate Shaw Yeah. Right.
Leah Litman Right.
Kate Shaw Disqualified. Done.
Leah Litman Yeah. And then like, really in the ultimate response, you know, after, you know, Robbie, you point out that you know, this is not correct and etc. the Trump team says the purpose of this letter was simply to inquire as to whether there was any merit in this. I didn’t realize it was acceptable to just ask questions in my letters to the court. That’s a new one for me as far as rules of professional conduct go. But I do think that the lawyer’s conduct in this case will affect what happens next, because, of course, in the event that they appeal, it’s difficult to overturn a jury’s verdict. Right. The Seventh Amendment requires, you know, respect to juries. And so people are usually left with challenging evidentiary rulings, right, or instructions that a judge gave. But in this case, Trump’s lawyers were not always great at actually lodging their objections. There was one kind of viral exchange that went around where Judge Kaplan says, any more witnesses? E. Jean, your lawyers say just a few exhibits. Let’s play the video. And then Trump’s lawyer says, no objection. The video plays, and then she objects. And so, you know, you can’t really object to evidence on appeal if you didn’t object to the evidence when it came in. And so I think that is really going to limit, you know, what might happen next in this case. And, you know, probably you mentioned a little bit like how disorienting it was to see a lawyer just run roughshod over the rules of professional conduct. I mean, how difficult is it to try to lawyer a case when someone is not kind of abiding by the usual rules of civil procedure?
Robbie Kaplan So, you know, when you guys write a brief and you’re countering a brief on the other side where it’s so bad that in order to respond to it, you kind of have to make sense of it and then respond to those arguments. That’s kind of what it was like in the courtroom. Like she would just be completely I almost wanted to. Take the documents and help her get them in. Because what took so much time?
- Jean Carroll Yeah.
Robbie Kaplan I mean I think on the on on the expert analysis doctor Ashley Humphries, who put on the damages case, I think my partner Sean probably won 95%. And I’ve never seen anything like this in my life. 95% of the objections.
- Jean Carroll Oh, yeah. Yeah.
Robbie Kaplan And it would take so long because they just couldn’t ask a question that was not objectionable.
- Jean Carroll Totally. My God. Yeah.
Melissa Murray I love the idea of you helping her out. Just like walking over to the defense table. Let me help you with this. I’m going to introduce this into evidence.
Kate Shaw Yeah. That’s real, real mentorship.
Melissa Murray Not only will I win my case, I might win yours too.
Leah Litman Maybe, you know, one more question, to you both kind of circling back to something we joked about at the beginning. Recent reporting in rolling Stone suggests that Trump allies are pledging a, quote, holy war against Taylor Swift. So, Robbie and E. Jean, any advice for taking on Trump and winning?
- Jean Carroll I give advice to Taylor Swift.
Leah Litman This is the occasion.
Melissa Murray You’re the Advice Queen.
- Jean Carroll Well, just welcome to the club and enjoy it. And she is a beautiful, wonderful, extraordinary, dazzling young woman. She will handle this as she handles everything, with perfection.
Robbie Kaplan Tell her she can call us any time.
Leah Litman If she does. Robbie, you need to pass on her contact info to me, to be clear.
- Jean Carroll Oh, wow. Yeah, your hair looks like hers. Leah.
Leah Litman Thank you. Oh my gosh. Okay, um.
Melissa Murray It’s not coincidental, E. Jean.
- Jean Carroll Not coincidental, eh?
Melissa Murray It is not coincidental.
Leah Litman I’m going to make that my ringtone.
Kate Shaw I don’t know that there’s a better place to leave it, I think we’re going to leave it there.
Melissa Murray I think I think we’re done. I think we’re done.
Kate Shaw All right. E. Jean. Carroll, Robbie Kaplan, the dynamic duo who, along with other tremendous lawyers at Robbie’s firm, took on Trump and won. Thank you so much to both of you for taking the time to talk with us today.
Robbie Kaplan Thank you so much, guys.
- Jean Carroll Thank you.
Melissa Murray Strict Scrutiny is a Crooked Media production hosted and executive produced by Leah Litman, me, Melissa Murray and Kate Shaw, with production and editing support by Melody Rowell, audio support from Kyle Seglin and Charlotte Landes, and music by Eddie Cooper. We get production support from Madeline Herringer and Ari Schwartz, and if you haven’t already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, cool people, please rate and review us. It really helps.