{"id":122926,"date":"2025-06-13T17:04:06","date_gmt":"2025-06-14T01:04:06","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/06\/13\/second-circuit-declines-to-let-trump-grab-carroll-by-the-process-again\/"},"modified":"2025-06-13T17:04:06","modified_gmt":"2025-06-14T01:04:06","slug":"second-circuit-declines-to-let-trump-grab-carroll-by-the-process-again","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/06\/13\/second-circuit-declines-to-let-trump-grab-carroll-by-the-process-again\/","title":{"rendered":"Second Circuit Declines To Let Trump Grab Carroll By The Process. Again."},"content":{"rendered":"
\"\"
(Photo by Brendan McDermid-Pool\/Getty Images)<\/figcaption><\/figure>\n

This morning a totally normal thing happened in the Second Circuit when the judges brushed off a request for en banc<\/em> review by a disappointed appellant.<\/p>\n

Well \u2026 not totally normal<\/em>. The case did involve the sitting president\u2019s effort to disappear the the first E. Jean Carroll verdict finding him liable for sexually assaulting and defaming the advice columnist. The hope was to persuade the wider court that trial Judge Lewis Kaplan abused his discretion with respect to the evidence presented at trial. These alleged abuses included admitting testimony that Trump attempted to sexually assault other women and indeed bragged about it on the infamous Access Hollywood tape, as well as by excluding information about who funded Carroll\u2019s litigation. Trump was also big mad that Judge Kaplan didn\u2019t let him tell the jury that Carroll named her cat \u201cVagina.\u201d<\/p>\n

\"\"
<\/figcaption><\/figure>\n

In a per curiam<\/em> order<\/a> in December, Judges Denny Chin, Susan Carney, and Myrna P\u00e9rez affirmed the trial court\u2019s ruling, finding no abuse of discretion, and, even assuming that the panel might have decided some minor issues differently than the trial court, merely harmless error.<\/p>\n

Also this morning, a slightly less normal thing happened, which was that Judges Chin and Carney filed a concurrence<\/a> lambasting the dissenters from the denial of rehearing en banc for their batshit crazy opinion.<\/p>\n

\u201cThe dissent fails to cite contrary binding authority or any prior decisions that, upon review, actually conflict with the panel\u2019s decision; it fails to acknowledge the deferential standard of review that binds us; and it fails to identify any single question of exceptional importance that requires en banc consideration,\u201d they wrote incredulously, adding a terse reminder that \u201cwe do not convene en banc to relitigate a case.\u201d<\/p>\n

And finally this morning a completely insane<\/em> thing happened which is \u2014 no surprises here! \u2014 Judge Steven Menashi filed said batshit dissent<\/a>, which was joined by Judge Michael Park, the only other Trump appointee on the Second Circuit. <\/p>\n

The dissent starts out with a footnote citing an unpublished Third Circuit opinion in Hill v. Cosby<\/a><\/em> \u2014 yes that<\/em> Cosby. The theory is that someone accused of a crime can deny the accusation without committing defamation. Except in that case it was Cosby\u2019s lawyer talking about pending litigation, and he confined himself to denying the allegations and managed not to call Hill a liar participating in a hoax who was anyway too unattractive to assault. The court found that the lawyer\u2019s denial was \u201cnot actionable because it includes the facts supporting that implication\u201d and \u201cadequately disclosed the factual basis for the attorney\u2019s opinion.\u201d<\/p>\n

Auspicious!<\/p>\n

The dissent goes on to complain that \u201cThe actual malice standard famously raises \u2018the plaintiff\u2019s burden of proof to an almost impossible level\u2019\u201d and yet the jury found it was met here, supposedly because the trial judge erroneously excluded evidence that some of Carroll\u2019s legal fees were paid by LinkedIn founder Reid Hoffman (although apparently without her being fully aware of the subsidy). <\/p>\n

The theory is that evidence of Democrats rallying around Carroll would undercut the predicate for a finding of actual malice, since it would go to the defendant\u2019s state of mind. But, as Judge Chin and Carney point out, Trump never argued this himself since it was \u201corthogonal to his basic position\u201d that what he said was true<\/em>, not just his reasonable if mistaken belief. And, as they point out, it\u2019s emphatically not the province of Circuit Court judges to run a simulation of what might have happened in a parallel universe if the parties had argued their cases differently.<\/p>\n

The dissent is full of wild claims, but perhaps the most offensive is the suggestion that Trump can\u2019t be liable for defamation because maybe he just plum forgot<\/em> about sexually assaulting this woman in the dressing room at Bergdorf\u2019s.<\/p>\n

\u201cBecause the purported conduct underlying the lawsuit had allegedly occurred almost thirty years earlier and \u2018lasted just a few minutes,\u2019 at the time of his statement President Trump might not have even remembered any interaction\u2014even assuming one occurred\u2014let alone still regarded a lawsuit based on such long-ago events as a politically motivated hoax,\u201d they wrote, snarking that \u201cNormally, the statute of limitations would have prevented such a suit, but New York suspended the statute of limitations and Carroll sued \u2018nine minutes after the [suspension] became effective.\u2019\u201d <\/p>\n

It\u2019s gross! And not normal! And coming to the Supreme Court this summer.<\/p>\n

As for Carroll, she and her attorney\u2019 Roberta Kaplan celebrated the ruling.<\/p>\n

\u201cAlthough President Trump continues to try every possible maneuver to challenge the findings of two separate juries, those efforts have failed,\u201d they told ATL. \u201cHe remains liable for sexual assault and defamation.\u201d<\/p>\n

Carroll v. Trump<\/a> [Docket via Court Listener]<\/p>\n

\n

Liz Dye<\/a>\u00a0lives in Baltimore where she produces the Law and Chaos\u00a0substack<\/a>\u00a0and\u00a0podcast<\/a>.<\/strong><\/em><\/p>\n<\/p>\n

The post Second Circuit Declines To Let Trump Grab Carroll By The Process. Again.<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
(Photo by Brendan McDermid-Pool\/Getty Images)<\/figcaption><\/figure>\n

This morning a totally normal thing happened in the Second Circuit when the judges brushed off a request for en banc<\/em> review by a disappointed appellant.<\/p>\n

Well \u2026 not totally normal<\/em>. The case did involve the sitting president\u2019s effort to disappear the the first E. Jean Carroll verdict finding him liable for sexually assaulting and defaming the advice columnist. The hope was to persuade the wider court that trial Judge Lewis Kaplan abused his discretion with respect to the evidence presented at trial. These alleged abuses included admitting testimony that Trump attempted to sexually assault other women and indeed bragged about it on the infamous Access Hollywood tape, as well as by excluding information about who funded Carroll\u2019s litigation. Trump was also big mad that Judge Kaplan didn\u2019t let him tell the jury that Carroll named her cat \u201cVagina.\u201d<\/p>\n

\"\"
<\/figcaption><\/figure>\n

In a per curiam<\/em> order<\/a> in December, Judges Denny Chin, Susan Carney, and Myrna P\u00e9rez affirmed the trial court\u2019s ruling, finding no abuse of discretion, and, even assuming that the panel might have decided some minor issues differently than the trial court, merely harmless error.<\/p>\n

Also this morning, a slightly less normal thing happened, which was that Judges Chin and Carney filed a concurrence<\/a> lambasting the dissenters from the denial of rehearing en banc for their batshit crazy opinion.<\/p>\n

\u201cThe dissent fails to cite contrary binding authority or any prior decisions that, upon review, actually conflict with the panel\u2019s decision; it fails to acknowledge the deferential standard of review that binds us; and it fails to identify any single question of exceptional importance that requires en banc consideration,\u201d they wrote incredulously, adding a terse reminder that \u201cwe do not convene en banc to relitigate a case.\u201d<\/p>\n

And finally this morning a completely insane<\/em> thing happened which is \u2014 no surprises here! \u2014 Judge Steven Menashi filed said batshit dissent<\/a>, which was joined by Judge Michael Park, the only other Trump appointee on the Second Circuit. <\/p>\n

The dissent starts out with a footnote citing an unpublished Third Circuit opinion in Hill v. Cosby<\/a><\/em> \u2014 yes that<\/em> Cosby. The theory is that someone accused of a crime can deny the accusation without committing defamation. Except in that case it was Cosby\u2019s lawyer talking about pending litigation, and he confined himself to denying the allegations and managed not to call Hill a liar participating in a hoax who was anyway too unattractive to assault. The court found that the lawyer\u2019s denial was \u201cnot actionable because it includes the facts supporting that implication\u201d and \u201cadequately disclosed the factual basis for the attorney\u2019s opinion.\u201d<\/p>\n

Auspicious!<\/p>\n

The dissent goes on to complain that \u201cThe actual malice standard famously raises \u2018the plaintiff\u2019s burden of proof to an almost impossible level\u2019\u201d and yet the jury found it was met here, supposedly because the trial judge erroneously excluded evidence that some of Carroll\u2019s legal fees were paid by LinkedIn founder Reid Hoffman (although apparently without her being fully aware of the subsidy). <\/p>\n

The theory is that evidence of Democrats rallying around Carroll would undercut the predicate for a finding of actual malice, since it would go to the defendant\u2019s state of mind. But, as Judge Chin and Carney point out, Trump never argued this himself since it was \u201corthogonal to his basic position\u201d that what he said was true<\/em>, not just his reasonable if mistaken belief. And, as they point out, it\u2019s emphatically not the province of Circuit Court judges to run a simulation of what might have happened in a parallel universe if the parties had argued their cases differently.<\/p>\n

The dissent is full of wild claims, but perhaps the most offensive is the suggestion that Trump can\u2019t be liable for defamation because maybe he just plum forgot<\/em> about sexually assaulting this woman in the dressing room at Bergdorf\u2019s.<\/p>\n

\u201cBecause the purported conduct underlying the lawsuit had allegedly occurred almost thirty years earlier and \u2018lasted just a few minutes,\u2019 at the time of his statement President Trump might not have even remembered any interaction\u2014even assuming one occurred\u2014let alone still regarded a lawsuit based on such long-ago events as a politically motivated hoax,\u201d they wrote, snarking that \u201cNormally, the statute of limitations would have prevented such a suit, but New York suspended the statute of limitations and Carroll sued \u2018nine minutes after the [suspension] became effective.\u2019\u201d <\/p>\n

It\u2019s gross! And not normal! And coming to the Supreme Court this summer.<\/p>\n

As for Carroll, she and her attorney\u2019 Roberta Kaplan celebrated the ruling.<\/p>\n

\u201cAlthough President Trump continues to try every possible maneuver to challenge the findings of two separate juries, those efforts have failed,\u201d they told ATL. \u201cHe remains liable for sexual assault and defamation.\u201d<\/p>\n

Carroll v. Trump<\/a> [Docket via Court Listener]<\/p>\n

\n

Liz Dye<\/a>\u00a0lives in Baltimore where she produces the Law and Chaos\u00a0substack<\/a>\u00a0and\u00a0podcast<\/a>.<\/strong><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

(Photo by Brendan McDermid-Pool\/Getty Images) This morning a totally normal thing happened in the Second Circuit when the judges brushed off a request for en banc review by a disappointed appellant. Well \u2026 not totally normal. The case did involve the sitting president\u2019s effort to disappear the the first E. Jean Carroll verdict finding him […]<\/p>\n","protected":false},"author":3,"featured_media":122927,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-122926","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/06\/Screenshot-2025-06-13-at-12.27.09E280AFPM-1021x1024-k7oEwq.png?fit=1021%2C1024&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/122926","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=122926"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/122926\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/122927"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=122926"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=122926"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=122926"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}