Frequently Asked Questions About The $83.3 Million Verdict Against Donald Trump For Defaming E. Jean Carroll
A Guide For The Perplexed
On January 26, 2024, a jury in the federal court in Manhattan returned a verdict of $83.3 million against Donald Trump for his defamation of E. Jean Carroll. I am going to answer some of the questions that people have been asking about that verdict.
Wasn’t There Another Trial Between E. Jean Carroll & Donald Trump
Yes, E. Jean Carroll won at a first trial against Donald Trump in May, 2023. She received a $5 million verdict. Here is a link to my Daily Beast article from May 2023 giving all of the details.
Two important things were decided during that trial:
Donald Trump did sexually assault E. Jean Carroll in the dressing room of the Bergdorf Goodman Department store in 1995-96 by inserting his fingers into her genitals without her consent; and
Donald Trump’s statements that he did not know E. Jean Carroll, did not sexually assault her and that she was making it all up were defamatory.
The defamation claims covered in the May 2023 trial were for Donald Trump’s statements in 2021-22, but did not cover his initial statements in 2019 when E. Jean Carroll’s book came out.
How Did The Jury Come To The Figure $83.3 Million?
The second trial covered two statements made by Donald Trump in 2019 (when he was President) where he stated that E. Jean Carroll was lying about the sexual assault, he never knew her, she “wasn’t his type” and she was a “wack job”.
Judge Kaplan held that Trump’s liability for defamation was established by the jury verdict in the first case, and the only question to be determined at trial was damages. This is under a doctrine called collateral estoppel, which means once there has been a full and fair trial of an issue between two parties, the determination of that issue in the first trial controls in any subsequent trial.
As you will see in the verdict sheet, the jury found Trump liable for three types of damages: (a) compensatory damages for “reputation repair” ($11 million), (b) other compensatory damages ($7.3 million) and (c) punitive damages ($65 million).
What is “Reputation Repair” And Why Was E. Jean Carroll Awarded $11 Million
“Reputation repair” is the cost of creating a public relations campaign to repair the reputation of the plaintiff to get rid of the impact of the defamatory statements by the defendant. Here, E. Jean Carroll put forward an expert witness named Professor Ashlee Humphries of Northwestern University, who testified that it would cost between $7 - $12 million to remove the negative impact of Donald Trump’s 2019 comments on E. Jean Carroll’s reputation. Trump did not present an opposing expert witness. During closing arguments, Ms. Carroll’s attorneys asked the jury to award $12 million for reputation repair, the top of Prof. Humphries’ range. The jury awarded nearly all of that: $11 million.
What Were The Other $7.3 Million Of Compensatory Damages?
The other compensatory damages were split into two categories: economic damages and mental anguish.
The economic damages consisted in the lost earnings of E. Jean Carroll in the wake of Donald Trump’s defamation in 2019. She testified that she lost her job as an advice columnist at Elle Magazine, because “nobody wanted advice from a ‘wack job’”. She testified that her only steady income was from paid subscriptions on her substack column, from which she makes about $100,000/year1.
The mental anguish portion of compensatory damages came from the death threats and other vile abuse that E. Jean Carroll received after President Trump made his defamatory statements in 2019. Ms. Carroll testified that she receives frequent threats of rape, torture and death. She testified that she now keeps a gun by her bed, fearing for her life. These damages cannot be arithmetically computed, but rather are left to the good judgment of the jurors.
During closing arguments, Ms. Carroll’s attorneys requested an additional $12 million in compensatory damages. The jurors elected to award $7.3 million for this category. There was no further breakdown of how the jurors reached that figure.
What Are Punitive Damages?
On top of the $18.3 million in compensatory damages, the jury awarded Ms. Carroll $65 million in punitive damages. The purpose of punitive damages is to punish the defendant for egregious misconduct, to deter the defendant (and others) from repeating the wrongful acts.
Is $65 Million In Punitive Damages Allowed?
The Supreme Court has held that the Due Process Clause imposes limits on the amount of punitive damages that a jury can award. In a 1996 case called BMW of North America, Inc. v. Gore, the Supreme Court identified three factors that control:
(a) the degree of reprehensibility of the defendant’s conduct;
(b) the ration of punitive damages to compensatory damages (less than 10:1 is presumed to be allowed); and
(c) sanctions that have been imposed for comparable misconduct.
Here, the $65 million in punitive damages is only 3.55x the compensatory damages ($18.3 million) found by the jury. Since that is below the “single digit multiplier” (below 10x) identified in BMW v. Gore, I would expect the punitive damages to be upheld, in full.
Can Donald Trump Delay Payment Of The $83.3 Million During An Appeal?
Yes, but only if he pays about $92 million into the Court in the next 30 days.
Under Federal Rule of Civil Procedure 62, E. Jean Carroll is barred from trying to execute on the $83.3 million verdict for 30 days after the judgment is entered. During that time, Donald Trump can (a) file a notice of appeal and (b) seek to have the trial court stay execution of the judgment by “providing” (depositing) “a bond or other security.” In the SDNY, the Court typically requires deposit of 110% of the amount of the verdict.
For example, when Donald Trump appealed the $5 million verdict in 2023, he had to deposit $5.5 million into the court.
The purpose of the deposit is to take “credit risk” away from the appeal. When the money is deposited to the Court, it leaves the control of the defendant. Whoever wins the appeal will get the money. If E. Jean Carroll prevails on appeal, the Court would pay the money directly to her. If Trump were to prevail on appeal, the Court would return the money to him.
If Trump does not post the $92 million, he could still pursue an appeal, but that would not delay E. Jean Carroll from enforcing the judgment during the appeal. She could seize whatever funds are in any of Donald Trump’s bank accounts in any of the fifty states. She could also seize his personal property. She would have the assistance of county sheriffs, who would be required to seize his cars, paintings, etc and sell them at auction. In addition, she could place liens on any of his real estate. Most defendants prefer to post the security, rather than have their property seized.
How Long Will An Appeal Take?
Ordinarily, an appeal to the Second Circuit Court of Appeals would take about 18 months. Here, it is likely that the appeal of the $83.3 million 2024 verdict will be consolidated with Trump’s earlier appeal of the $5 million 2023 verdict. Trump filed his opening brief in November 2023.
Although it is possible that the Second Circuit will wait until after Election Day (November 5), in an ordinary case I would not be surprised if the Second Circuit issues its decision by October 2024.
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As always, the only thing that I know for certain about the future is that it has not happened yet. We will see.
This column (and all of my substack material) is and always will be free.
a ♥️ just for the Maimonides reference.
Lovely, concise, and very well written - thank you! A couple of questions for you, if I may:
Where does the 'extra' 10% of the 110% appeal bond go if the appeal fails?
Are you familiar with Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir. 2003)? It almost certainly wouldn't apply here, due to the size of the compensatory damages award, but it is kind of fascinating...