Years ago, as a young prosecutor, I won a sexual assault case and the survivor in that case wrote to the court saying, “I know Mr. Wu says we won the case but it doesn’t feel that way to me.” I’ve always remembered those words and they resonated with me upon hearing that a jury had awarded writer E. Jean Carroll a total of $83.3 million dollars in her second defamation case against former President Donald J. Trump.
It resonated because the real message in their verdict is that each and every time Trump defamed her by calling her a liar, or saying he would not have raped her because she wasn’t his type, or disparaged her motives in coming forward, he was abusing her again. Each and every instance demonstrated Trump’s belief that he was entitled to do whatever he wanted to her because he was a rich and powerful man.
Although damages do sometimes get reduced on appeal, this one will not. The damages were broken down into compensatory damages and punitive damages and each category is legally sound. Compensatory damages are meant to “compensate” for so-called “out-of-pocket” expenses caused by the defendant to the plaintiff. Here the total amount in compensatory damages was $18.3 million which was broken down into $11 million for reputation repair and $7.3 million for emotional harm.
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Evidence exists as to both categories with Northwestern University professor Ashlee Humphreys giving expert testimony about the damage to Carroll’s reputation from “articles, tweets and TV broadcasts referencing Trump’s defamatory statements” with “as many as 104,132,285 impressions on those pieces on just the first day each was aired or published. As many as 24,788,657 viewers likely believed the claims.”
The $65 million portion in punitive damages will also withstand scrutiny. Punitive damages, as the name suggests, are awarded to punish behavior that is essentially malicious and to deter such behavior in the future. The verdict form used in the case required the jurors to first determine whether Trump had “acted maliciously, out of hatred, ill will, or spite, vindictively, or in wanton, reckless, or willful disregard of Ms. Carroll’s rights” before awarding punitive damages.
In assessing whether punitive damages are excessive, the rough rule of thumb is that they need to be between four times the compensatory and no more than ten times based on a line of United States Supreme Court cases. Here the $65 million falls safely within that ratio being roughly four times the amount of the compensatory damages. The test is really one of “reasonableness”—meaning the punitive damages must be reasonably related to the amount of compensatory damages and these easily meet that requirement.
Actually, the punitive damages may even be a bit too much on the safe side. In a way, the jury let Trump off easy. A figure of $100 million or more would have made a more significant impact for a wealthy man like Trump. $83 million here and maybe a few hundred million more there starts to add up, and the criminal fraud case brought by New York State Attorney General Leticia James could cost Trump as much as $370 million.
I had expected a number more in the $100 million range given the egregiousness of Trump’s behavior even during the trial when “he attacked Ms. Carroll online and insulted her last week at a campaign stop in New Hampshire.”
On the Friday afternoon of closing arguments, “Trump made 17 posts or shares to his social media site, Truth Social, totaling nearly 750 words, decrying the Carroll case, and attacking her account and the judge.”
One factor that may have caused the damages to be lower was having the jury start deliberations Friday afternoon. As a prosecutor, I never liked juries to start deliberations on a Friday afternoon because they might be motivated to reach a hasty decision in order to start their weekend and avoid having to come back on Monday. That’s nothing against the jury. It’s just human nature. Starting them deliberating on Monday morning could have allowed them more time to have a healthy debate over a larger damages figure.
On the other hand, starting deliberations right after closing arguments can also allow whichever side gave a more powerful closing argument to benefit from the emotional momentum effect of the arguments. Here, there was little doubt as to which side had the more effective lawyering with Trump’s lead attorney Alina Habba consistently making basic evidentiary mistakes worthy of comparison to the lawyering in My Cousin Vinny during the trial and being admonished by the judge even in the midst of her closing argument.
Trump, himself, did his bit to worsen his case by dramatically storming out of court during the closing just as Carroll’s lawyer Robbie Kaplan began her arguments. The judge noted for the record that Trump had left which further highlighted his behavior for the jury.
But $85 million is a significant damages award. Significant enough that we can expect misogynists and Trump supporters to claim that Ms. Carroll is getting a windfall and does not deserve millions of dollars for what Trump did to her. You may even hear people joking about how they would be glad to have sex for that amount of money displaying their ignorance that even their joke assumes consent. Criticism of the damages awarded also reflects an assumption that there is a quantifiable dollar value for a person’s will being overcome, for their consent to be violated. But there really isn’t.
There’s an iconic ad campaign for Mastercard that gives prices for various goods like hot dogs or a bag of chips that have a quantifiable value before comparing it to qualitative experiences like moments with loved ones that are priceless. Of course, being an ad for Mastercard the closer was, “There are some things that money can’t buy. For everything else, there’s Mastercard.”
Donald Trump and his supporters think he is the priceless part of that ad but he’s not. He’s really the “everything else” part. To his admirers and the MAGA base he may embody the illusion of what money can buy and they sadly believe that illusion is what is priceless in life. But they are wrong.
The freedom of a woman to control her own body, the freedom of a person to say no, freedom of the press, freedom from slavery, freedom from racism, sexism, and freedom from the violence that arises from hate—these are what is priceless in life. Trump and his supporters don’t get that. They never will.
