As any creditor will tell you, there is a difference between presenting a bill and getting it paid. As any creditor’s lawyer will say to you, there is a difference between getting a judgment and getting it satisfied. And, in case you were wondering, there is often a slip between the cup and the lip.
Two election workers obtained a defamation judgment in Washington for $146 million against Donald Trump’s lawyer and ally, Rudy Giuliani—a judgment that Giuliani says he can’t possibly satisfy. Judge Beryl Howell of the U.S. District Court for the District of Columbia ordered Giuliani to compensate the workers immediately, expressing concern that the former New York City mayor may have been dishonest about his finances and might not comply with the judgment. The award sent Giuliani to seek refuge of the bankruptcy court, alleging in sworn documents that he had between $100 million and $500 million in liabilities and $1 million to $10 million in assets. The bankruptcy filing may allow the 79-year-old to appeal the judgment without posting a bond, but the bankruptcy doesn’t mean that Giuliani will get off scot-free. The bankruptcy may avail him little. Defamation is an intentional tort that is not dischargeable in bankruptcy. The unsatisfied portion of the judgment will follow him eternally.
Former President Trump is also the target of a defamation case. The first case, Carroll II, involved libelous statements Trump made about Carroll in 2022 after leaving office.
After a May trial, a jury found that Trump was liable for sexually abusing the writer E. Jean Carroll and defaming her by lying publicly that he hadn’t done it. Carroll proved at trial that Trump sexually assaulted her in a dressing room of the Bergdorf Goodman department store in the mid-1990s after a chance encounter in the lingerie department. She waited until 2019, when Trump was president, to make her allegations public for the first time in a book she wrote about her life.
The jury awarded Carroll judgment for $5.6 million, and the case now on trial involves similar statements Trump made while president in 2019 in which he accused her of concocting the incident to make money. Trump tried to run the defense that he was immune from liability for statements made while president, but the appellate court shot him down, holding that he had waived the defense.
Carroll’s claim is for defamation. The law has long recognized that false, defamatory publications of and concerning an individual damage the reputation and are actionable.
A cause of action for defamation is as old as the common law. Defamation is deemed an injury to personality. One’s reputation has value and is a legally protected interest. Shakespeare’s Iago said: “he that filches from me my good name Robs me of that which not enriches him And makes me poor indeed.”
Trump testified that he could not have assaulted Carroll because “she is not my type.” But his own words undercut him when he identified a picture of his former wife, Marla Maples, as a picture of E. Jean Carroll. Trump persisted in making defamatory statements about Carroll even during the present trial. Her lawyer offered a video of a Trump media availability in which he called Carroll a “person I never knew,” calling the trial a “rigged deal.”
In a June filing seeking a retrial on the issue of damages in Carroll II, Trump’s lawyer Joseph Tacopina, with whom he since parted company, argued the jury award was “grossly excessive” and should be “in the low six-figure range” at best. The matter is now on appeal.
To secure the judgment pending appeal, Trump had to pay $5.6 million into a court-controlled account—chicken feed for a billionaire, a proposition many have disputed. A court in New York has already ruled that Trump habitually overstated his assets, so we don’t know how deep the financial bite is presented by the Carroll case.
Damage to reputation is often hard to quantify. The plaintiff may claim an economic loss, such as lost employment opportunities or inability to sell one’s wares. But typically, the jury awards damages based on its conclusion that there has been an injury to personality and estimates what that injury is worth.
Carroll called an expert witness who told the jury “that the cost of repairing damage to Carroll’s reputation is between $7.3 million and $12.1 million.” Carroll herself testified: “I am hated by a lot more people.”
Then, there is the issue of punitive damages, “smart money” awarded to deter Trump from doing it again. The plaintiff’s lawyer may argue in summation: “Who would change places with E. Jean Carroll for $100 million?”
The present case, known as Carroll I, is limited to the issue of damages, and Trump’s barbed and reckless tongue has formed the basis for adding more bucks to the bill.
In the present trial, Trump is judicially precluded by the finding of liability in the first trial. He is bound by the jury’s verdict that he sexually assaulted Carroll, that he lied about it, and that his lies defamed her. Trump’s lawyer, Alina Habba, has lamely argued that Carroll had already suffered the damages she is suing Trump for well before he defamed her with his accusation that she lied about being sexually assaulted by him. Robbie Kaplan, Carroll’s attorney, asked one devastating question: “Did any of the tweets before Donald Trump’s statement call you a Democratic operative or say that you should be raped?” Carroll’s response was simply, “No. Neither.”
Cross-examining Carroll on the issue of damages, Habba led with her chin:
Carroll: I am in this trial to bring my old reputation back.
Q: So you are suing Donald Trump to get your old reputation back?
A Yes.
Habba: No further questions. Judge Kaplan: We’ll take our break.
Legal observers think that Trump is in for a whopping verdict in Carroll I. The only question is whether he has the money to satisfy the judgment as he pursues his quest for re-election.
