Trump claimed the fame Carroll earned from his defamations is a "benefit" that lessens any damages.
Carroll's side called this "Donald Trump's most insulting argument."
Ultimately, jurors were barred from considering "any reputational benefits" in calculating damages.
Remember the "slaves learned valuable skills" controversy from July, when Florida updated its history standards, essentially telling middle-schoolers, "Hey, slavery wasn't all bad?"
Donald Trump hoped a similarly grotesque claim would save him some cash at his New York defamation trial.
He tried to convince jurors that the fallout E. Jean Carroll suffered from his repeated attacks — including torrents of hate mail and death threats — hasn't been all bad.
After all, the defense reasoned, Carroll was once just an advice columnist with a small, loyal following. Now, she's an anti-Trump icon, more famous, more beloved, and more in demand as a media personality than ever.
"She is living the life of the rich and famous, hanging out with celebrities, Kathy Griffin," lead defense lawyer Alina Habba said in closing arguments Friday.
She's "Getting tweets of acclaim," Habba added, "from Alyssa Milano, Jamie Lee Curtis, Rob Reiner."
This reputational windfall, Trump's side argued, should figure into the jurors' math, and actually lower any damages.
Habba pushed the point all last week, starting with opening statements. "She likes her new brand," Habba told jurors then, unveiling a jarring take on Carroll, considering that a previous jury, in May, had found she'd been violated by Trump's fingers in a mid-'90s sexual assault.
"As you will see," Habba promised in opening arguments, referring to Carroll's newfound fame, "she got what she wanted."
It's like a twist on the New York Post's infamous "Best sex I've ever had" headline. This was to be Trump's "Best defamation she ever had" defense.
Until a federal judge in Manhattan shut it down — completely.
Here's how Carroll's legal team and US District Judge Lewis Kaplan kept Trump's side from arguing that Carroll "got what she wanted" in terms of notoriety and support — and how the jury was barred from subtracting a single penny for "reputational benefit" from their ultimate $83.3 million verdict.
The 'net versus gross' question
Trump's "best defamation she ever had" defense was supposed to work like this.
Let's start with a defamatory statement — "She's a whack job," to quote from the 2019 defamation that started the Carroll litigation.
Let's suppose this defamatory statement injured Carroll's reputation in one part of the community, meaning among Trump supporters and anyone else persuaded by his attacks.
But what if the same "whack job" defamation also boosted Carroll's reputation in another part of the community, meaning among Trump haters and anyone else who publicly rallied to her side?
Judge Kaplan called this the "net versus gross" question.
Should the jury set damages that match the total, or "gross,'' injury to Carroll's reputation among those who now scorn her? Or should damages compensate her for the "net" injury to her reputation — the injury that remains after deducting for the admiration and success that also came her way?
Carroll's side: Team 'Gross'
Carroll's side was most decidedly on team "gross."
In a January 21 letter addressing the net-versus-gross question, they cited the Freeman v. Giuliani case, in which a jury hit Rudy Giuliani with $148 million in damages for an imaginary election-interference smear campaign that defamed two Georgia election workers.
Like Carroll, the election workers — Ruby Freeman and daughter Wandrea "Shaye" Moss — benefitted from an upwelling of sympathy and support after Giuliani's defamatory lies.
But judges in the Giuliani case and similar cases did not instruct jurors that this kind of "collateral" benefit offsets damages, Carroll's defense noted in their letter.
That's because "such benefits are irrelevant as a matter of law," Carroll attorney Joshua Matz wrote to Judge Kaplan.
Trump's side: Team 'Net'
"Net versus Gross" spilled into the courtroom Thursday as the parties argued over the pre-deliberations instructions that were to be given to jurors the next day.
Trump's side was, naturally, on team "Net." They wanted a big damages deduction for all the good things that happened to Carroll due to Trump's attacks.
Trump attorney Michael Madaio argued that the Supreme Court has defined reputation as the sum total, good and bad, of how someone's character is held by those around them.
"So you have to look at that holistically," Madaio told the judge. "And that includes any benefit to her reputation."
From the bench, Kaplan then posed to Madaio a very odd hypothetical.
That time when polygamy was legal in one state
"I don't think it is still the case, although I don't really know," the judge began. "But there was a time where polygamy was legal in one state in the United States. Yes?"
"Yes, your honor," Madaio answered, sounding a bit quizzical.
"And in 49 states, or however many, it was not only illegal, it was criminal," the judge continued. "Yes?"
"Yes," Madaio answered again.
Being falsely accused of living with eight spouses "would be possibly not defamatory at all" for someone living in the state where polygamy is legal, the judge reasoned.
"It, indeed, might be an indication of respect and admiration for the person who had accomplished the wonderful thing of having eight spouses," the judge continued.
But in much of the rest of the country, "it would be an imputation of criminal and immoral behavior, right?" the judge asked.
"Right," Madaio answered.
So should the person who falsely accuses someone of having eight spouses earn a small damages discount, the judge asked, because there's one state where polygamy is OK?
Carroll attorney Joshua Matz thought not.
He countered that any benefit Carroll received was "forced on her" when Trump called her a crazy liar and told his audience of tens of millions of listeners that she should "pay dearly."
And for that, Matz argued, Trump doesn't deserve any kind of break at all.
What happens in a 49-51 split?
Then Matz offered the judge a hypothetical of his own.
"Let's imagine that Mr. Trump made a statement that absolutely wrecked Ms. Carroll's reputation in the eyes of 49 percent of the audience," Matz said, "but actually led 51 percent of the audience to think more highly of her."
If you go with Trump's reasoning, he'd get a free pass, Matz argued. There'd be no damages due at all. Carroll's reputation getting wrecked in the eyes of all those other folks simply wouldn't matter.
"The fact that somebody who has been defamed could also receive some reputational benefit — either from people admiring them for the thing they are accused of having done, or being sympathetic to them, or abhorrent about the whole situation — has never been understood to offset damages," Matz told the judge.
The judge said he'd sleep on the "net versus gross" question.
The next day, Friday, Carroll attorney Roberta Kaplan — no relation to the judge — raised the question again, this time to the jury, in closing arguments.
"The defense in this case actually has the nerve to suggest that Ms. Carroll actually should be grateful to Donald Trump for defaming her because she is even more famous than she was before," the attorney told the jurors.
"Donald Trump's most insulting argument," she called it.
"I have to be honest with you," she told jurors. "It takes a lot of gall to make an argument like that.
Saying Carroll should be grateful to Trump is 'indefensible'
"You saw what Donald Trump said about her. You saw the horrific online attacks that followed," Kaplan, the attorney, continued in her closings.
"You saw her here yourself," she told jurors, referencing Carroll's testimony. "The idea that she should be grateful to him, that she's now better off, is indefensible."
In her closing arguments, Habba, Trump's lead attorney, argued that Carroll "is a woman who was exuberant and enjoying newfound attention."
When she came forward in 2019, Carroll knew that "she would receive universal praise from President Trump's critics," Habba told the jury.
Carroll's "We won" tweet, after the first defamation verdict in May, garnered 3.9 million views, Habba said, adding, "She's enjoying this!"
In rebuttal arguments, Carroll's attorney, Shawn Crowley, conceded to jurors, "There's no denying that more people know who Ms. Carroll is now than back in 2019.
"And that includes some celebrities," she said. "Obviously that support makes her feel good at times, it makes her feel protected, and sometimes it even makes her feel happy."
"But the idea that the positive attention that Ms. Carroll has gotten somehow cancels out the harm that Donald Trump has caused for years, that's nonsense."
The judge spoke next, and had the last word.
He was clear in his instructions to the jury: Trump was not entitled to a damages discount.
"You are not to consider any reputational benefits — if any — in deciding on a damage award in this case," he told the jury.
It took the jury just under three hours to reach their verdict.
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