E. Jean Carroll and Donald Trump (Photo on left courtesy of E. Jean Carroll; photo on right via Emily Elconin/Getty Images)
With trial looming later this month, former President Donald Trump and his accuser E. Jean Carroll have a little more than a week to disclose whether they plan to attend in person.
“Each party is requested to inform the Court, in writing, no later than April 20, 2023, of whether that party intends to be present throughout the trial until completion and, if not, the dates on which he or she intends to be absent from the trial proceedings for all or part of the day,” Senior U.S. District Judge Lewis Kaplan wrote on Monday.
Carroll’s attorney Roberta Kaplan, who isn’t related to the judge, said the answer was: “Obviously, she’s going to be there.”
The “Ask E. Jean” columnist has waited years for a reckoning on her allegations that Trump raped her in the dressing room of a Bergdorf Goodman in the mid-1990s.
Trump’s attorney Joe Tacopina told Law&Crime that the former president hasn’t made any decision about whether he would attend.
Judge Kaplan left his order as inconclusive as possible on whether Trump’s presence would be compulsory.
“This request does not intend, and is not to be construed as suggesting, anything whatsoever with respect to whether either party is legally obliged to be present throughout the trial or, in any case, with respect to any legal consequences that might or might not flow from any decision not to be present throughout,” his ruling states.
Under normal circumstances, Trump would not be required to attend a civil trial.
“A civil litigant is under no obligation to personally show up in court,” former federal prosecutor Mitchell Epner noted in an interview.
Legal experts point out that Carroll has the power to subpoena Trump, but it remains unclear whether she’ll do so.
“I would expect that Carroll would be able to subpoena Trump,” said former federal prosecutor Renato Mariotti, the host of the podcast “It’s Complicated.” “She also could play excerpts of his deposition in lieu of doing so.”
Even without his live testimony, Trump’s deposition could help advance key parts of Carroll’s case. Trump denied sexually assaulting Carroll by stating: “She’s not my type,” but when shown a picture of Carroll during deposition, Trump mixed the columnist up with his ex-wife Marla Maples, transcripts show.
The denial sparked Carroll’s original defamation lawsuit, which remains in limbo because of a separate legal fight about Trump’s possible immunity. That case relates to comments Trump made while still president, leaving the D.C. Court of Appeals to decide whether he made those remarks to reporters as part of his duties in office.
Either way, Trump faces possible defamation liabilities because he repeated his denial after his presidency. Carroll filed her second lawsuit for sexual battery under New York’s Adult Survivors Act, along with a separate defamation count over Trump’s rant against her, the judge, and other topics on Truth Social.
Trump doesn’t appear on Carroll’s proposed witness list, but the former president is the first name on his own defense list.
Epner, who is now a partner at Rottenberg Lipman Rich PC, said that Carroll’s legal team may choose to eliminate the uncertainty of live testimony by deploying the “incredibly damning” deposition testimony.
“The deposition is a known quantity,” Epner noted. “She can just press play and get the information out there that defendant Trump mistook E. Jean Carroll, who he constantly said wasn’t his type, for Marla Maples, the woman he considered so beautiful that he left his wife of decades in order to be with her.”
Epner added that the photographs of Carroll and Maples were “roughly contemporaneous.”
Since the witness lists became public in February, Trump’s legal woes have expanded. A New York grand jury criminally charged him in a historic indictment of a former U.S. president. A district attorney in Georgia is widely expected to follow suit, and Department of Justice special counsel Jack Smith reportedly secured crime-fraud rulings advancing his classified documents investigation.
Carroll’s second lawsuit against Trump accuses him of violating six criminal statutes in allegedly raping her. As his civil and criminal liabilities mount, Trump may avoid subjecting himself to more sworn testimony — if he listens to wise counsel, Epner said.
“Donald Trump has proven that every time he gives a statement under oath, he creates more problems for himself than he solves,” Epner said. “He has real criminal exposure, including an active indictment. If it were any other individual, I would expect that person to be assiduously trying to settle this case because no good can come from his testifying. But Donald Trump has proven immune to good legal counsel for many years.”
The trial is expected to begin on April 25, 2023.
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