Trump Rape Accuser Says Appeal Shouldn’t Derail Discovery

This 1987 photograph of E. Jean Carroll and Donald Trump appears in a civil defamation suit against the now president to rebuff Trump’s claims that he could not have raped her because he never met her. (Image via Courthouse News)

MANHATTAN (CN) — Until such time that she can subject President Donald Trump to a DNA test, rape accuser E. Jean Carroll urged a federal judge Friday not to reward his ploys by sidelining document discovery.

For someone who has emphatically denied rape allegations, “Mr. Trump sure seems desperate to avoid the justice system,” Carroll’s attorney Joshua Matz told the court this morning.

The virtual hearing before U.S. District Judge Kaplan came about 14 hours after Trump’s team moved to put Carroll’s case on hold pending appeal. Trump seeks a Second Circuit reversal after Kaplan refused back in October to let the Justice Department stand in for Trump in the lawsuit.

Matz called the move “just the latest chapter in a story that goes back to when we first filed the case.” Regardless of whether the court puts depositions and expert meetings on pause, he said, “at the very least it would be appropriate to continue with document discovery.”

Trump’s attorneys “have undertaken the kind of gamesmanship that gives the rest of us lawyers a bad name,” argued Matz, who is a partner at Kaplan Hecker & Fink.

Saying that Trump lawyers have “gratuitously complicated what should have been a straightforward process,” Matz also insisted that the president’s delay tactics are a “sign of weakness and fear.”

Carroll claims Trump raped her in the dressing room of the department store Bergdorf Goodman in the 1990s. Though civil claims over that encounter are now time barred, the figure behind the long-running advice column “Ask E. Jean” says Trump defamed her last year in his denial of the accusation.

Despite a photograph showing them together, Trump denied the two had even met and also argued that she is “not my type.”

Carroll said Elle magazine fired her after Trump’s comments. 

Trump lawyers first tried to get the case thrown out for jurisdiction when it was filed, then refused to provide a DNA sample and pushed to delay the action while he is in office. Each maneuver has been unsuccessful, and Judge Kaplan most recently threw out his effort to rebrand the suit as one against the U.S. government — a maneuver that suggested Trump was acting within the scope of his office when he responded to Carroll’s rape allegations. 

As the case is now in the hands of the Second Circuit, Trump’s team argues that Kaplan must stay all proceedings.

Paul Burgo, an attorney for the president with the firm Kasowitz Benson Torres, said he thought the stay was a given, and didn’t file the motion earlier than 8 p.m. Thursday because “appeal essentially transfers jurisdiction.” 

“We learned that we were mistaken on that point,” Burgo said, apologizing to the court after Matz revealed that Burgo first tried to email his stay request on Wednesday afternoon, and was told by a court deputy to submit a motion. 

Matz said the motion was still “inexplicably delayed” between Wednesday afternoon and Thursday evening. Trump’s team “knew, or darn well should have known” that their arguments were available. 

Carroll’s will file a response to the stay next week, but Matz said he plans to cite a case involving victims of the World Trade Center attack, in which District Court discovery continued during an intervening appeal. 

Burgo already offered a challenge to that response, saying Trump’s matter is distinguishable from the World Trade Center matter under the Westfall Act, which gives federal employees immunity from claims arising out of acts taken in the course of their official duties. 

Judge Kaplan asked Burgo why discovery can’t continue: “Immunity from liability and immunity from discovery are two different things, aren’t they?” 

Kaplan asked if it would be Burgo’s position in a theoretical situation more typical of the Westfall Act, in which the U.S. subs in as defendant for a Postal Service truck driver involved in an accident, that discovery against the driver would be terminated. 

“I believe the discovery could proceed,” Burgo replied, “however, once the motion of appeal is filed, the district no longer has the authority to order that discovery.” 

Burgo did not respond to a request for comment. 

Carroll said in an email Thursday that, despite delay tactics, she is not giving up. 

“I won’t be silenced,” Carroll said, “and I look forward to having my lawyers respond to Trump’s latest attempt to deny me my day in court.”

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