Welcome back, Deadline: Legal Newsletter readers. E. Jean Carroll was in the news this week, with reports of a Trump Justice Department probe that could ensnare the 82-year-old who won tens of millions of dollars in civil damages against the president. It’s unclear exactly what the DOJ is looking into or how a prosecution against Carroll could succeed if it tries to bring one.
The Donald Trump-backed U.S. attorney in Chicago denied that he’s investigating her. Some of the latest reporting suggests the government is more focused on a Chicago-based nonprofit tied to billionaire Democratic donor Reid Hoffman that funded part of her litigation. CNN, which first reported on the inquiry, said that even after the U.S. attorney’s denial, its sources maintained that the DOJ was focused on whether Carroll committed perjury in a deposition regarding her litigation funding.
Hoffman, for his part, said he “will not bend the knee” to the president, who he said “is investigating me because I supported E Jean’s lawsuit.”
Whatever comes of any criminal probe, it’s a good time to check in on something we know is definitely happening: The president is trying to get the Supreme Court to reverse the damages Carroll won in that civil litigation. His effort involves two separate but related appeals that are at different stages of the process. The bottom line is that it could be months until we learn whether the justices want to review Trump’s claims or, instead, allow the lower court rulings against him to stand and let Carroll start collecting.
The first Supreme Court petition Trump filed is in the case where a New York jury awarded Carroll $5 million after it found him liable for sexually abusing her in 1996 and defaming her in 2022. The president’s lawyers lodged the petition in November, arguing that evidence was wrongly admitted against him, including the “Access Hollywood” tape in which he bragged about grabbing women by their genitals. The high court keeps rescheduling the petition from being considered at the justices’ private conferences where they decide whether to grant or deny review of appeals.
The court doesn’t explain why it reschedules petitions. The reason for doing so can only be speculated about in real time and is better understood in retrospect after the court finally acts.
All we know for sure right now is that the court was not unanimous about immediately wanting to reject Trump’s petition. That might not sound like much and, to be sure, it doesn’t guarantee what the justices will ultimately do. But it’s more than most petitioners have going for them. That’s because most petitions are quickly denied without any procedural quirks along the way. So, the serial rescheduling of Trump’s petition is a better signal for him than for Carroll. But, again, it doesn’t mean the justices will grant review of his petition or ultimately side with him if they do. It takes four justices to grant review and, of course, a majority of the nine justices to win in the end.
One speculative explanation for the court continually punting on considering Trump’s petition is that at least one justice or some unknown number of justices want to wait until the second petition is fully briefed before they decide what to do with both cases. The second petition is coming in the case where Carroll won $83.3 million in defamation damages.
In a court filing earlier this month, one of Trump’s personal lawyers described that petition as “upcoming” after losing in the appeals court like he did in the $5 million case. There’s no reason to doubt that the $83.3 million petition is coming because he wants to upend the latest lower court ruling that keeps him on the hook for those damages.
The second petition not only involves more money but also raises legal issues that the justices are more prone to care about than the evidentiary claims the president raised in the $5 million petition. In the filing signaling the forthcoming petition in the $83.3 million case, which stems from statements Trump made while he was in his first term as president, he said that among his claims are ones involving presidential immunity and whether the federal government could intervene on his behalf in the case. On that second point, the DOJ said it’s bringing its own Supreme Court petition to press that intervention issue, too. So, Trump will have support from the government in his personal appeal.
To recap: The president will have two petitions before the Supreme Court, one in the $5 million case that’s been pending for months and another in the $83.3 million case that he said is on its way to the justices. And though the high court might wait to act on both petitions until the second one is fully briefed, nothing is stopping the court from granting or denying the $5 million one in the coming weeks, which would still leave them free to grant or deny review in the $83.3 million case in the future if they want to.
But at this point, a working theory of mine is that the justices might be waiting until both cases are fully in front of them before they decide on what they want to do. The court is on no deadline to act on either petition, so there’s no set timeline for when we’ll find out. And even if the court grants review in one or both appeals any time soon, they still wouldn’t likely be set for argument until at least the next court term that starts in October, with a decision due by next summer at the earliest.
In the meantime, we’ll see whether the Trump DOJ tries to make a federal criminal case out of any conduct connected to the president’s personal civil litigation. The secretive work of both the DOJ and the high court should become clearer in the fullness of time.
Next week on the court’s docket, the justices will issue an order list Monday morning, announcing the latest action on pending petitions — though, again, we won’t hear yet whether they’re granting review of Trump’s $5 million Carroll petition because the justices rescheduled its consideration yet again this week.
We’ll also be looking for the court to act on the shadow docket in Alabama’s emergency bid to use a congressional map in the midterm elections that a three-judge lower court panel with two Trump appointees deemed intentionally discriminatory against Black voters.
And, as we march toward the term’s final rulings, which are expected to wrap up in a month or so before the justices break for the summer, the court is set to issue opinions again on Thursday in cases argued this term.
Have any questions or comments for me? I’d love to hear from you! Please submit them through this form for a chance to be featured in a future newsletter.
