Joseph Tacopina does not seem to be a man overly given to self-reflection. Like his famous client, Donald Trump, the lawyer appears to have focused more on his television/PR strategy than winning over the jury in the assault and defamation case going on in a federal court in New York. But perhaps it has dawned on him that his 1950s-style cross examination of E. Jean Carroll went rather badly last week. Or maybe he’s just continuing the pattern of making himself as odious to the court as possible.
In any event, early this morning Tacopina filed a letter motion for mistrial on grounds that Judge Lewis Kaplan is mean to him — more or less.
He huffed that the court “inequitably conveyed to the Jury and apparent endorsement of Plaintiff’s view” by not allowing him to hector Carroll about the number of lawyers in the room — a fact readily ascertained by the jurors themselves:
TACOPINA: But one of the reasons Carol Martin told you not to tell the story to anyone and one of the reasons you have testified that you never told the story to anyone was because of Donald Trump’s power.
CARROLL: I was afraid Donald Trump would retaliate, which exactly is what he did. That’s exactly. One of my biggest fears came absolutely true.
CARROLL: He has two tables full of lawyers here today. It came absolutely true.
TACOPINA: We have about the same amount of lawyers. Not everyone is a lawyer, Ms.Carroll, but regardless of that –
THE COURT: Come on. Mr. Tacopina. let’s move along.
Tacopina tried to get previously excluded testimony on litigation funding admitted by claiming that Carroll herself brought it in when she said that she sued because Trump falsely accused her of being a Democratic operative. In reality, the funding was secured in 2020 after she filed the complaint, and is irrelevant to Trump’s allegedly defamatory statements in 2019. He also repeated for a third time his complaint that one of Carroll’s propensity witnesses should be excluded because there’s some question whether Trump tried to touch her genitals or just threw her against the wall and tried to kiss her.
He whined that social media posts by Trump and his son about the trial were “pure protected opinion,” and thus the judge’s implied threats of contempt charges “reflect a predisposition which is underlying its unfair treatment of Defendant in this matter.” By contrast, he characterized a story in a UK tabloid about a mock jury convened by Carroll’s team finding Trump guilty as “the pinnacle of prejudicial.”
Most hilariously, he affected great indignation that Judge Kaplan explained to the jury that Carroll’s book title “What Do We Need Men For?: A Modest Proposal” and her suggestion that all males should be sent to Montana for retraining was a riff on one of the canonical texts in the English language:
After Carroll testified that the above-referenced notion of disposing and retraining of all men was a satire, the Court interjected in a manner that corroborated such testimony by stating such notion derived from Swift’s A Modest Proposal. Rather than addressing the subject of men, Swift’s “proposal [was] to solve the problem of Irish poverty by killing and eating Irish children. See Jonathan Swift, A Modest Proposal (1729).” Farah v. Esquire Mag., 736 F.3d 528. 536 (D.C. Cir. 2013). That said, if Plaintiff wished to elicit testimony about a three-hundred year old book that did not address the subject matter of her own book, she could have done so on re-direct. It was not for the Court to provide evidence from the Bench to corroborate Plaintiff’s position in a way that suggested to the Jury favoritism of any one party.
As journalist Marcy Wheeler points out, not only does Tacopina appear to have missed the literary reference, but the case he cited was brought by notorious right-wing fringe conspiracy theorists, and in it the DC Circuit opined on the central role of satire, differentiating it from defamation.
But most of the motion is taken up with whining that the court cut Tacopina off and refused to let him badger Carroll on the witness stand.
It seems virtually certain that the lawyer knows this effort is doomed and is simply posturing for his client and the appeals court. But if it was an effort to get Judge Kaplan to go easier on him, that seems not have worked at all.
And in the meanwhile, Trump, who refused to tell the court whether or not he intended to attend the trial — cough cough admit that he never intended to set foot in the courtroom — is in Scotland. But at least he got the message from Tacopina and switched to shitposting about Justice Juan Merchan, who is presiding over his New York State criminal trial. Which counts as an epic feat of client control when you’re working for Donald Trump. So, this is all going swimmingly.
Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.