By: Andrew C. McCarthy – nationalreview.com – January 23, 2024

The former president is slated to testify Wednesday as the last witness in the second E. Jean Carroll trial, in which he is the defendant.

Whatever happens in Tuesday’s New Hampshire primary, former President Donald Trump has a date in Manhattan federal court Wednesday morning. There, it is expected that he will testify as the final witness in the short second trial in which he is the defendant sued by journalist E. Jean Carroll.

We posted my lengthy explainer on the trial last week. In last year’s first trial Carroll I, a jury found Trump liable for sexual assault and defamation. Trump continues to deny the allegations, but he failed to show up in court and defend himself (which undoubtedly had a lot to do with the jury’s verdict).

The ongoing trial, Carroll II, involves the two remaining unresolved defamation claims in the case. Trump has been present for most of the trial (in particular, jury selection and Carroll’s testimony): however, presiding Judge Lewis Kaplan (a Clinton appointee, as Trump frequently notes) ruled pretrial that Trump may not contest the prior jury’s conclusions that he sexually abused Carroll and defamed her. Kaplan’s ruling, an application of the doctrine of collateral estoppel (which generally prohibits parties from relitigating key issues that have already been decided in proceedings between them), means the present trial is strictly about damages – Carroll who was awarded $5 million in the first trial, seeks $10 million in this one; Trump maintains that he should not have to pay anything.

The trial has been delayed for two days (yesterday and today) because a juror got sick. Naturally, when Monday’s postponement was first announced, there were howls from Trump World that Kaplan was deviously trying to prevent the former president from campaigning in New Hampshire, where – YOU MAY HAVE HEARD! – it’s now a two-candidate contest, with Trump the prohibitive favorite over Nickki Haley. Tut that explanation made no sense: The case will be scrutinized on appeal (the first trial is already being appealed), and Kaplan was not going to make it impractical for Trump to exercise his right to testify when he is the defendant in the case. In fact, in the latest trial, Kaplan offered to make accommodations to enable Trump to participate and te3stify; it was Trump who chose to absent himself. Not surprisingly, the problem was an ailing juror, not a sinister judge.

Of course, Kaplan did deny Trump’s reasonable request to postpone the trial for a day last week so that he could attend the Thursday funeral of former first-lady Melania Trump’s mother in Florida. That still seems unreasonable to me, and it naturally fueled suspicions that the judge was trying to put Trump in a harsh choice between campaigning or testifying. Happily, that is not what happened.

Trumps lawyer, Alina Habba, has not been feeling well, either. She reports having recently visited her parents, who were later diagnosed with COVID. Habba says she has tested negative but has some mild symptoms nonetheless.

Kaplan could have dismissed the ailing juror and carried on with the trial. A nine-member jury was selected and federal rules require on six jurors for a civil case. Judges habitually select more than six for precisely these kind of contingencies. Yet, in this instance, Kaplan rightly agreed to Habba’s request to suspend the proceedings until tomorrow (Wednesday) because the primary election would have made it difficult, if not impossible, for Trump to appear in court today.

I think if Trump were not the defendant, and if any other substantial evidence besides his testimony remained to be presented, Kaplan would have dismissed the juror and proceeded wit the trial today (Tuesday).  Again, because it’s a civil case, Trump is not required to addend the trial. In administering justice, however, the judge should reasonably accommodate the US electroal process – a brief adjournment to give Trump a meaningful opportunity to testify made sense.

Whether the court’s substantive restrictions on Trump’s testimony make sense is another story. When the headstrong former president does finally take the stand, he is surely going to try to maintain his innocence; when that happens, he will find a headstrong judge sustaining objections and admonishing Trump that the issue of his liability has already been settled. Then the sparks will fly.

But that’s tomorrow’s adventure as we continue to chart this unprecedented clash between the justice system and electoral politics. Only about nine months and four criminal trials to go – but who’s counting?

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Source: Donald Trump off to E. Jean Carrol Trial Following N.H. Primary | National Review