(NEW YORK) — Cross-examination of former Elle columnist E. Jean Carroll resumed Monday in her civil defamation and battery case against former President Donald Trump, after the judge in the case denied the defense’s request for a mistrial.
Carroll, who brought the lawsuit in November, alleges that Trump defamed her in a 2022 Truth Social post by calling her allegations “a Hoax and a lie” and saying, “This woman is not my type!” when he denied her claim that Trump raped her in a Bergdorf Goodman department store dressing room in the 1990s.
She added a charge of battery under a recently adopted New York law that allows adult survivors of sexual abuse to sue their alleged attacker regardless of the statute of limitations. Trump has denied all allegations that he raped Carroll or defamed her.
In a letter sent early Monday morning to Judge Lewis Kaplan, defense attorney Joe Tacopina said the judge had mischaracterized elements of the case and improperly shut down certain lines of questioning during cross examination last week.
Tacopina said he should have been allowed to explore why Carroll did not pursue security camera footage from Bergdorf Goodman and why Carroll did not go to the police following the alleged assault.
“[P]roof that Plaintiff never attempted to determine if any such footage of the parties existed constitutes circumstantial evidence that her accusation is false,” the letter said.
Kaplan denied Tacopina’s request for a mistrial before testimony resumed Monday morning. He offered no reason for the denial.
In his ongoing cross examination of Carroll, Tacopina introduced several of her advice columns for Elle magazine in which she suggested that her readers call police in the event of a sexual assault or threat.
“There were numerous times where you’ve advised your readers to call the police” despite Carroll never reporting her own alleged rape to police, Tacopina said to Carroll.
“In most cases I advised my readers to go to the police,” Carroll replied.
“I was born in 1943,” she said. “I am a member of the silent generation. Women like me were taught to keep our chins up and not complain. The fact that I never went to the police is not surprising for someone my age. I would rather have done anything than call the police.”
The answer was stricken from the record as nonresponsive to the question posed, but the exchange continued the defense’s questioning of Carroll’s actions following the alleged assault, and their suggestions that her behavior — not going to the police, not seeking security camera footage, continuing to shop at Bergdorf’s — is at odds with how other sex assault victims might behave.
Earlier, Tacopina asked Carroll about her shopping habits, saying, “You’ve made many purchases at Bergdorf’s since 1995-96?”
“I’ve not made many but I’ve made several,” Carroll replied.
Tacopina displayed an itemized list of 23 purchases Carroll made from 2001-2018 totaling more than $13,000, and said the purchases made it clear that Carroll was not afraid to enter the store where she was allegedly assaulted.
“Bergdorf’s is not a place that I’m afraid to enter,” Carroll said.
Tacopina asked Carroll about a time she was in the store with Lisa Birnbach, one of two women Carroll has said she told about the alleged rape by Trump.
“That day where you were discussing your niece’s wedding dresses, having champagne with Lisa, did the alleged attack ever enter your head?” Tacopina asked.
“I don’t remember,” Carroll answered. “This was a very happy occasion. I wasn’t there to remember the time in the dressing room in 1996.”
The nine-member jury of six men and three women is weighing Carroll’s defamation and battery claims and deciding potential monetary damages.
Carroll’s lawsuit is her second against Trump related to her rape allegation.
She previously sued Trump in 2019 after the then-president denied her rape claim by telling The Hill that Carroll was “totally lying,” saying, “I’ll say it with great respect: No. 1, she’s not my type. No. 2, it never happened. It never happened, OK?” That defamation suit has been caught in a procedural back-and-forth over the question of whether Trump, as president, was acting in his official capacity as an employee of the federal government when he made those remarks.
If Trump is determined to have been acting as a government employee, the U.S. government would substitute as the defendant in that suit — which means that case would go away, since the government cannot be sued for defamation.
This month’s trial is taking place as Trump seeks the White House for a third time, while facing numerous legal challenges related to the Jan. 6 Capitol attack, his handling of classified material after leaving the White House, and possible attempts to interfere in Georgia’s 2020 vote. Fulton County District Attorney Fani Willis said Monday she would decide whether to file criminal charges against Trump or his allies this summer.
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