Dem
51
GOP
49
Aaron Blake of The Washington Post has an interesting piece about whether E. Jean Carroll could win a third defamation lawsuit against Donald Trump if she tried. As you probably recall, suit #1 will cost Trump $5 million plus interest and suit #2 will cost Trump $83 million plus interest. After he lost the second time, Trump made comments very similar to the ones that cost him $83 million in #2. For example, at a rally in Georgia after he lost the second case, he said: "I just posted a $91 million bond—$91 million on a fake story, totally made-up story. Ninety-one million based on false accusations made about me by a woman that I knew nothing about, didn't know, never heard of. I know nothing about her." Two juries have already found otherwise and there is photographic evidence that he knew Carroll.
In fact, in the speech and at other venues, Trump has repeated almost all the words that got him in trouble the second time. The only things he did not repeat are that: (1) she has ulterior motives to the lawsuit (i.e., selling a book) and (2) "she is not my type."
A defamation case has three parts. First, the plaintiff has to prove that the defamatory statements are false. True statements can never be the basis of a defamation lawsuit. Second, the plaintiff has to prove actual malice. A statement simply made in ignorance is not defamatory. Third, the plaintiff has to demonstrate the damage caused by the defamatory statements. Since the situation this time is so similar to the other two, Carroll probably has a good case.
Defamation lawyer Tre Lovell said that Trump continuing to say things that he knows have been found defamatory in the past gives Carroll a very strong case and could push the damages much higher, perhaps into the hundreds of millions of dollars. This would not be due to actual damages, since the first decisions covered them. It would be for punitive damages, basically making it so expensive for Trump that he would shut up for fear of being bankrupted on a fourth case.
Trump's attacks on Carroll are perplexing given his cash crunch. He needs to get a bond for $454 million to stay seizure of his properties while he appeals his loss in the New York State fraud case. If Carroll sues him a third time and wins a judgment of, say, $200 million, he would need to come up with 110% of that (i.e., $220 million) to stay seizure of his assets pending an appeal. He understands that process extremely well, but apparently simply cannot control himself. Maybe he believes that if he wins the election, Carroll won't be able to collect, but that is not true. If he loses #3 and posts a bond, the surety company is going to insist on the bond being fully collateralized. That is, he will have to assign the company the right to seize some of his property if he loses the appeal. That process will continue even if he is elected president because defamation is a civil case, not a criminal one, and presidents are not immune to civil cases arising from matters not relating to their official duties. Since Trump was not president when he made the remarks disparaging Carroll in Georgia last week, he has no immunity at all from a potential third lawsuit. (V)