Senior U.S. District Court Judge Lewis Kaplan appears to be losing patience with Donald Trump and the attorney defending the ex-president in a defamation rape case brought by journalist E. Jean Carroll.
Trump, through his lawyer Joe Tacopina, was supposed to inform the judge by Thursday whether or not he would be showing up at trial, which begins next week. Trump is not being called as a witness by Carroll’s attorneys, nor is he legally required to appear or attend.
But Judge Kaplan needs to know if Trump will show, for reasons including security arrangements for the ex-president.
Tacopina appears to have tried to essentially get an excused absence note from Judge Kaplan, so he could blame his anticipated non-appearance on the Court rather than on the ex-president, but Kaplan wasn’t having it.
“Mr. Trump’s lead counsel expresses Mr. Trump’s alleged desire to testify at trial but seeks an order from the Court excusing his presence unless either party calls him as a witness and, in the event he does not testify, instructing the jury that his ‘absence . .. by design, avoids the logistical burdens that his presence, as the former president, would cause the courthouse and New York City,'” Judge Kaplan writes in a scathing memorandum (below).
“First, the Court neither excuses nor declines to excuse Mr. Trump from attending the trial or from testifying in this case,” Kaplan makes clear.
“Mr. Trump is under no legal obligation to be present or to testify. The plaintiff [Carroll] has made clear that she does not intend to call him as a witness. The decision whether to attend or to testify is his alone to make. There is nothing for the Court to excuse.”
“Second, the Court notes but does not accept Mr. Trump’s counsel’s claims concerning alleged burdens on the courthouse or the City were Mr. Trump to attend or testify,” Kaplan adds, making clear Trump cannot get away with claiming he did not attend or testify as a courtesy to the Court.
And Kaplan reiterates his confidence in all the entities that exist to ensure the ex-president’s safety and security.
“Mr. Trump is entitled by law to the protection of the United States Secret Service, which he now has enjoyed as a former president for more than two years. He has a right to testify in this case. As it would do for any person with business before the Court, the Court will do everything within its power to enable Mr. Trump to exercise that right. Moreover, it is entirely confident that the United States Marshals Service and the City of New York will do their parts in securing that right to Mr. Trump, just as they repeatedly have done in other cases involving security concerns.”
Judge Kaplan then makes clear he’s very aware of Trump’s schedule, writing, “the Court notes from Mr. Trump’s campaign web site and media reports that he announced earlier this week that he will speak at a campaign event in New Hampshire on April 27, 2023, the third day of the scheduled trial in this case.”
“If the Secret Service can protect him at that event, certainly the Secret Service, the Marshals Service, and the City of New
York can see to his security in this very secure federal courthouse.”
Kaplan also points out that Trump has had months to decide – and points out his recent federal indictment.
“Mr. Trump has been on notice of the April 25 trial date in this case since on or about February 7, 2023,” he writes. “There has been quite ample time within which to make whatever logistical arrangements should be made for his attendance, and certainly quite a bit more time than the five or six days between his recent indictment on state criminal charges and his arraignment on that indictment approximately one block from the location of the trial of this case.”
“The question of the requested jury instruction is premature. Mr. Trump is free to attend, to testify, or both. He is free also to do none of those things. Should he elect not to appear or testify, his counsel may renew the request.”
Kaplan also issues a warning: “there shall be no reference by counsel for Mr. Trump in the presence of the jury panel or the trial jury to Mr. Trump’s alleged desire to testify or to the burdens that any absence on his part allegedly might spare, or might have spared, the Court or the City of New York.”
MSNBC legal analyst Lisa Rubin points to Tacopina’s Thursday afternoon response to Judge Kaplan.
“While Trump was ordered to tell Judge Kaplan today whether he intends to attend part or all of the Carroll trial,” she writes, “he won’t give the judge a straight answer. (And if you’re not a lawyer, let me translate: That’s not going to go over well. At all.)”
Read Judge Kaplan’s memo below or at this link.
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