Lawyers for Trump and E. Jean Carroll Trash Each Other in Dueling Letters on the Impact of Tax Return Decisions

By: 
Law & Crime
Published on:
July 16, 2020
NBC News

Lawyers for E. Jean Carroll asserted in a letter last week that the Supreme Court’s decision in Trump v. Vance could come back to haunt President Donald Trump in Carroll’s defamation lawsuit in state court. A Trump lawyer responded with a letter of his own on Tuesday, flatly calling that argument “incorrect.” Now Carroll’s lawyers have fired back, calling Team Trump’s retort “as desperate as it is unconvincing.”

Carroll is a writer and well-known advice columnist who has accused Trump of raping her in the 90s. She is currently locked in a legal dispute with the president that has been at a standstill. In an effort to move the state court case forward last Friday, Carroll’s lawyer Roberta Kaplan wrote a letter adding Trump v. Vance as a supplemental authority.

“We write on behalf of Plaintiff E. Jean Carroll to provide notice of supplemental authority confirming that Defendant Donald J. Trump’s presidential immunity claim in this action, the sole basis for his motion to stay, see Doc. N. 49, lacks any merit whatsoever,” the letter said. “As Your Honor may recall, Trump has moved to stay this action pending the New York Court of Appeals decision in Zervos v. Trump. In that motion, Trump asserted that the Supremacy Clause provides presidential immunity for personal conduct actions pending in state court, even though the Supreme Court has already held that there is no such immunity for identical actions in federal court.”

The president’s lawyers have sought to delay the Carroll case through the Zervos v. Trump case referenced above. Trump asked the court to delay the proceedings until his lawyers are able to fully litigate separate defamation claims brought by former The Apprentice contestant Summer Zervos.

Carroll has claimed that the “Donna Karan coat-dress” she was wearing at the time of the alleged rape has been hanging on the back of her closet door and remained “unworn and unlaundered since that evening.” Carroll and her lawyers have requested a DNA swab so that Trump’s DNA can be compared to sample of unidentified male DNA found on the dress. In February, Trump responded to demands that he provide a DNA sample in Carroll’s defamation lawsuit by claiming that her requests were “burdensome.”

Trump lawyer Marc Kasowitz argued Tuesday that Kaplan was not correct that the Trump v. Vance case can be applied to the state civil case. That decision was limited to the criminal context, Kasowitz said [emphasis his]:

We write on behalf of defendant President Donald J. Trump to respond to plaintiff’s July 10, 2020 letter to the Court (“Pl. Letter”), in which she asserts that the U.S. Supreme Court’s decision last week in Trump v. Vance, No. 19-635, 2020 WL 3848062 (U.S. July 9, 2020), means that the President’s motion to stay this case pending the now fully briefed appeal to the Court of Appeals from Zervos v. Trump, 171 A.D.3d 110 (1st Dep’t 2019), should be denied.

Plaintiff’s assertion is incorrect. Vance does not hold that a civil action in state court against a sitting President like Zervos and this action may proceed. The Supreme Court itself made this clear on the same day it handed down Vance. In Trump v. Mazars USA, LLP, No. 19- 715, 2020 WL 3848061 (U.S. July 9, 2020), which concerned the ability of Congress to issue a subpoena to the President, the Supreme Court explicitly noted that the holding in Vance was limited to criminal proceedings:

Two hundred years ago, it was established that Presidents may be subpoenaed during a federal criminal proceeding, and earlier today we extended that ruling to state criminal proceedings, Trump v. Vance, ante, p. __.

Kasowitz said that, actually, the other Trump tax return decision, Trump v. Mazars, supports the conclusion that state courts don’t have jurisdiction over the president in civil actions “simply … because the president is sued in his private capacity.”

Kasowitz argued that, on the contrary, the Vance case doesn’t actually work in Carroll’s favor. He said the case should be stayed until the issue in the Zervos case is resolved on appeal.

“In fact, as outlined below, and contrary to plaintiff’s arguments, Vance confirms the reasons Clinton v. Jones, which upheld federal court jurisdiction over civil actions against a sitting President, should not be extended to state court,” he wrote. “In any event, the Court of Appeals itself will soon decide this issue on the pending Zervos appeal. Staying this action would not only allow the Court of Appeals to decide this threshold constitutional issue, but would extend the ‘judicial deference and restraint’ the courts owe the President under the United States Constitution.”

The Trump attorney further argued that Kaplan ignored an important line from Supreme Court Justice Brett Kavanaugh’s concurrence in Vance:

Plaintiff cites to Justice Kavanaugh’s concurrence in Vance, which stated that the President is not “above the law.” (Pl. Letter at 3.) She omits that Justice Kavanaugh went on to say: “[a]t the same time, in light of Article II of the Constitution, this Court has repeatedly declared — and the Court indicates again today — that a court may not proceed against a President as it would against an ordinary litigant.” Vance, 2020 WL 3848062, at *13 (Kavanaugh, J., concurring). In any event, as the Supreme Court noted in Clinton v. Jones, “a postponement of the judicial proceedings” during the Presidency does not place “the occupant of the Office of the President . . . ‘above the law.'” Clinton v. Jones, 520 U.S. at 697. (See generally Zervos App. Br. at 28-29.)

Kaplan responded to Kasowitz on Wednesday evening, suggesting it was absurd to assert that Trump’s “recent, historic defeats at the Supreme Court somehow advance [the president’s] position here.”

“This argument is as desperate as it is unconvincing—particularly when these rulings are set in the broader context,” Kaplan argued, saying that the Carroll suit in state court focuses on Trump’s private conduct, not his official conduct (i.e., conduct as president).

What followed was a lengthy recitation of the kinds of arguments and cases that presidents tend to lose:

Presidents have long argued that they are immune from accountability in state and federal court, but these arguments have failed time and again, except in the special case of civil damages suits seeking to impose liability on Presidents for their official conduct. See Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982). They failed when President Nixon asserted immunity from federal criminal subpoenas. See United States v. Nixon, 418 U. S. 683 (1974). They failed when President Clinton asserted immunity from civil claims filed in federal court arising from private conduct. See Clinton v. Jones, 520 U. S. 681 (1997). They failed when President Trump asserted immunity from state criminal subpoenas. See Trump v. Vance, No. 19-635 (U.S. July 9, 2020). And they failed when President Trump asserted effective immunity from Congressional subpoenas concerning his private conduct. See Trump v. Mazars USA LLP, No. 19-715 (U.S. July 9, 2020).

There is a clear message here. Presidents lose when they argue that they are above the law. They lose when they argue that state courts are categorically inferior than federal courts and can’t be trusted to decide sensitive questions. They lose when they argue that they are too important, or too busy, to answer for private misconduct or to provide information in connection with an investigation into whether crimes were committed. And they lose when they invent novel theories—never embraced by the Supreme Court—to assert that the Constitution forbids ordinary Americans like Ms. Carroll from seeking justice.

Kaplan said Kasowitz’s letter was like “kick[ing] up a cloud of dust” to “distract the Court from the key principles at issue.”

“In Mazars, the Supreme Court recognized that some suits involving the President’s private affairs might also implicate his official duties. But it squarely rejected the President’s blunderbuss argument that his private papers should therefore be treated the same as his official papers, explaining that ‘[s]uch a categorical approach would represent a significant departure from the longstanding way of doing business between the branches,'” the letter continued. “Like Nixon, Clinton, and Vance, Mazars thus confirms that suits involving the President’s private conduct are different than those involving his official conduct—and thereby precludes the President’s absolutist position.”

Kaplan, arguing that there should be no further delay, asserted that Trump’s “extreme position” in Vance and Mazars should also fail in the Carroll case.

“Ms. Carroll should be permitted to resume discovery and obtain justice for President Trump’s defamation of her good name and character,” the letter concluded.

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