Defamation defeat a double-edged sword for Trump

By Sam Cabral for the BBC

A New York jury has said Donald Trump must pay US$83.3m (NZ$136.7m) to E Jean Carroll, a writer he was found to have defamed by denying her allegation of sexual assault. Legal experts say the award is a message to the former president to stop smearing her. But will it work?

Last year Carroll won another civil case in which a separate jury found Trump legally responsible for sexually abusing and defaming her, and awarded her US$5m (NZ$8.2m) in damages.

The outcome in the first case did nothing to deter the former president in denying Carroll's story, personally attacking the writer and claiming he had never met her.

But after Friday's hefty legal bill, he notably did not denigrate the former Elle columnist in his reaction online, instead calling the case a "Biden Directed Witch Hunt".

Trump - who is currently facing four criminal indictments and could soon have to dish out millions more dollars in a New York civil trial relating to business fraud - has often said the cases against him were politically motivated.

In terms of his election campaign, his mounting legal woes have been both a boon and a bane for him, said Grant Reeher, a political science professor at Syracuse University.

"It's hurt the general population's views of him, but it's fuelled and strengthened his base, and even driven some Republicans on the fence to 'stay loyal' to the cause," Reeher told the BBC.

"Trump has been trying to wear these legal troubles as a badge of honour for his victimisation, and of his commitment to his supporters."

But he added that, while Trump's "witch hunt" framing may benefit him in the ongoing Republican primary contest, how it translates to the general election remains to be seen.

Recent polling has shown Trump locked in a tight race with President Joe Biden, and even edging ahead in some cases, in a prospective rematch of their 2020 race.

That "says as much about Biden and the Democrats as it does about Trump", said Feeder, alluding to the president's weak job approval ratings and concerns about his age.

Even if Trump does genuinely believe he has been wronged by Carroll, and most of his supporters agree, Friday's verdict reflects how nine of his peers, sitting in the jury box, felt about his conduct.

Lawyers for Carroll pointed out throughout the trial that Trump was still defaming her both in and out of court.

In closing arguments, they asked the jurors - seven men and two women - to deliver the kind of penalty that will "make him stop".

"This is a large sum. This is a very, very large sum," said Dmitriy Shakhnevich, an attorney and professor at the John Jay College of Criminal Justice.

"What the jury is saying is this is a wealthy man who's not stopping, and the only way to stop him is to hurt him [financially]."

Of the US$83m (NZ$136.7m) awarded to Ms Carroll, $65m (NZ$106.7m) of it was punitive damages. An award for punitive damages "relies on severity of the conduct", Shakhnevich noted.

Conservative lawyer John Yoo told Fox News: "The whole point of this... is to tell Donald Trump to shut up.

"I can't believe his lawyers haven't succeeded in telling him: campaign for president, make your accusations about a two-tiered justice system, but leave this alone."

And, though the ex-president is signalling his intention to appeal, legal experts told the BBC he is unlikely to win.

The sum of punitive damages "is not so disproportionate to the compensatory damages that it will raise any red flags, and so I would expect that it will stick", RonNell Andersen Jones, a professor at the University of Utah said.

Jones said Trump's online reaction - taking aim at Biden and the legal system, but not reiterating lies about Carroll - may be an early clue that the damages could have some deterrent effect.

University of Richmond law professor Carl Tobias said the Republican's "misbehaviour throughout the trial" may have hurt his case.

Tobias argued there was a distinct "lack of respect which Trump exhibited for the judge, the jurors, the opposing counsel, especially Carroll and the civil trial process".

It is extremely unlikely that the Supreme Court would grant an appeal, he added, because the justices rarely ever review cases involving such civil trials.

Former federal prosecutor Mitch Epner said Trump has avoided having to pay Carroll any money so far by transmitting a deposit to the court while the appeals process plays out.

Epner expects Trump will do the same with these much higher damages - stumping up either cash or an appeal bond as a deposit.

Without that, he added, Carroll could start seizing the former president's personal assets around the country, even putting liens on his real estate.

But after Trump's commanding victories in the first two Republican primary contests in Iowa and New Hampshire, there is no sign that Friday's verdict will slow his march to the party's presidential nomination.

"The first test will be South Carolina," said Brian Crowley, a long-time political analyst, referring to the Republican primary vote on 24 February.

"With polls showing him well ahead of Nikki Haley, she has an opportunity to use this ruling to push the idea that Trump has too much drama that could cost him the election against Biden."

- This story was first published by the BBC