A defamation expert says E. Jean Carroll's lawsuit against Trump could set an important precedent, but it probably won't make it to trial

e jean carrollE. Jean Carroll is pictured in June.Eva Deitch for The Washington Post via Getty Images

  • On Monday, E. Jean Carroll, the 75-year-old advice columnist who accused President Donald Trump of raping her in the mid-90s, filed a defamation lawsuit against him.
  • Business Insider spoke to Christy Eikhoff, a partner at the law firm Alston & Bird who specializes in defamation cases, to explain the nuances of the case and Carroll's chances of winning.
  • Eikhoff said the case has the potential to set precedent because it deals with statements that Trump made as president.
  • The current precedent is that presidents can be sued for issues that predate their presidency, which makes this case different, Eikhoff said.
  • Visit Insider's homepage for more stories.

E. Jean Carroll makes a strong argument in her defamation case against President Donald Trump, but the case will likely never make it to trial, one defamation expert told Insider.

Christy Eikhoff, a partner at Atlanta law firm Alston & Bird, specializes in defamation cases and recently successfully defended Christopher Steele, the author of the Trump dossier, from a defamation lawsuit that three Russian oligarchs filed. That case is currently awaiting appeal.

Carroll, Elle magazine's longtime advice columnist, sued Trump on Monday for saying she lied when she accused him of raping her in the mid-90s. Carroll first went public with the accusation in June, in a published excerpt of her memoir.

At the time, Trump denied the allegation and claimed never to have even met Carroll, though she later released a photo of them chatting at a party a few years before the alleged assault. He accused her of using the story to try and sell her memoir and appeared to insult her looks by saying she wasn't his "type."

White House Press Secretary Stephanie Grisham told Insider on Monday that "the lawsuit is frivolous and the story is a fraud - just like the author."

e. jean carroll and donald trump

A strong case against Trump

summer zervosSummer Zervous is pictured in January 2017.Mike Coppola/Getty Images

After reading Carroll's lawsuit, Eikhoff said she thinks it's on "solid legal footing."

She explained that since Carroll is a public figure, she will need to meet what's called the "actual malice" standard to win her case against Trump, meaning that she needs to prove that he knew what he was saying was false, but said it anyway.

That will all come down to whether Carroll's legal team is able to convince the jury that the assault happened.

Eikhoff thinks Carroll's case is also bolstered by the fact that Trump has failed to get a similar lawsuit filed by ex-Apprentice contestant Summer Zervos thrown out.

Zervos was one of several women to accuse Trump of sexual misconduct in the days leading up to the 2016 election, saying he groped her twice during a business meeting in 2007. Trump denied the allegation, calling her claims "fake news."

The president's legal team initially fought Zervos' lawsuit using the Supremacy Clause of the US Constitution, which prevents states from interfering with the federal government's ability to exercise its powers.

Their argument, in essence, was that a sitting president couldn't be dragged into a civil case filed in state court. A New York state judge ruled - and was backed up by an appeals court - that the clause does not apply and that no man, including the president, is above the law. The case is now in its third year.

A presidential defense

However, Eikhoff said there is one big different between Zervos and Carroll's cases that could add an extra complication for the latter - the fact that Trump made his allegedly defamatory comments about Carroll while he was president.

There hasn't been a similar case like that since Nixon v. Fitzgerald, a lawsuit involving a government contractor who sued after he acted as a whistleblower and was subsequently fired by President Richard Nixon. In that case, the Supreme Court sided with the president and said he couldn't be sued for his official acts in office.

If the case continues, Eikhoff said the issue will likely come down to whether Trump's comments about Carroll are considered official or unofficial acts by the president.

"I think the line of analysis is really going to be whether or not these statements that he made about Carroll were made in his official capacity or in his personal capacity. And if a court finds that he did it in his personal capacity and allows the case to go forward, then it really will set a new precedent," Eikhoff said. "That question has really never been called squarely before in a defamation case, but President Trump is different than any previous president in terms of the way that he communicates with the public."

From the wording of Carroll's lawsuit, Eikhoff said it's clear that her lawyers have "anticipated these arguments" because the lawsuit specifies that he is only being sued "in his personal capacity" and points out that Trump himself has filed several personal lawsuits since taking office.

Matters of opinion v. matters of fact

Eikhoff added that Carroll's lawsuit is different from the defamation suits that Stormy Daniels and Cheryl Jacobus filed, which the president successfully got dismissed since taking office.

These cases dealt with disparaging comments Trump made about the women. He called Daniels "a total con job" and Jacobus "a real dummy."

The difference here, Eikhoff said, is that those comments were a matter of opinion while both Carroll and Zervos' accusations stem from statements that can be proven true or false.

stormy danielsIn this Thursday, Oct. 11, 2018, file photo, adult film actress Stormy Daniels arrives for the opening of the adult entertainment fair &quotVenus," in Berlin.Associated Press/Marcus Schreiber

"You can't take a statement that someone's 'a real dummy' and prove it to be true or false," Eikhoff said.

She continued: "The Carroll case and the Zervos case are very different from that because there he's not just calling them names or calling them unattractive. Even though he did call E. Jean Carroll unattractive, that's not what they're suing about. They're suing that he says affirmatively as a statement of fact that he never met her, that he didn't rape her, and that he didn't know who she was - and the court in Zervos held that those are provable statements of fact. They're either true or false and a jury is going to need to decide if it's true or false."

Trump's 'typical pattern'

However, Eikhoff said she would be "surprised" if Carroll's case ever went to trial because Trump almost always settles suits.

"That is his typical pattern that we have seen with Trump, not just since he's been president, but over the course of his public life ... he takes cases quite far and to a brink. And then will usually end up resolving them more or less quietly to make them go away," she said.

But the case has the possibility to drag out for quite a bit longer. With the Zervos case in its third year, Eikhoff said Carroll's will be on a similarly "long track" and said it wouldn't go to trial "before the end of his first term."

{{}}
Add Comment()
Comments ()
X
Sort By:
Be the first one to comment.
We have sent you a verification email. This comment will be published once verification is done.