E.J. Carroll lawyer calls Trump filing a "paper napkin signed by the least trustworthy of borrowers"
Background
On January 26, the jury in Citizen Trump’s second E. Jean Carroll trial told the defaming rapist he had to pay a $83.3 million penalty to the woman he had assaulted and slandered. On February 8, Judge Kaplan registered the penalty. This action gave Trump 30 days to come up with the cash or bond to continue filing motions trying to overturn or reduce the award. Trump’s casual boasts of his wealth and cash on hand indicated this was no problem.
It was all hot air.
Last Friday, February 23, Trump begged the court to delay enforcing the bond. Or, if that was not an option, at least reduce it to sofa change. Judge Kaplan declined. Instead, he asked E. Jean Carrol’s lawyers to offer their opinion by Thursday (February 29) and granted Trump’s team an opportunity to respond by March 2 (this Saturday).
Carroll’s lawyers, led by the redoubtable Roberta Kaplan (no relation), have responded in a memorandum to Judge Kaplan. They were brutal. Their lacerating scorn resounds throughout. Let us have a look.
E. Jean Carroll’s reply to Trump
Carroll’s lawyers call Trump’s request to delay or lessen the award, an unsubstantiated request for the court to take his word he has the cash and would pay up. In addition, they point out that Trump has even more ominous financial and legal clouds looming on his horizon.
(Note: Bolding mine throughout. I have edited the brief’s excerpts to remove the case references — as this commentary is intended for non-lawyers. If the reader would like to look at the original, click HERE)
The reasoning Trump offers in seeking this extraordinary relief boils down to nothing more than “trust me.” He doesn’t offer any information about his finances or the nature and location of his assets. He doesn’t specify what percentage of his assets are liquid or explain how Carroll might go about collecting. He doesn’t even acknowledge the risks that now accompany his financial situation, from a half billion-dollar judgment obtained by the New York Attorney General to the 91 felony charges that might end his career as a businessman permanently.
In case the Judge misses the point, Carroll reiterates it.
He simply asks the Court to “trust me” and offers, in a case with an $83.3 million judgment against him, the court filing equivalent of a paper napkin; signed by the least trustworthy of borrowers.
Carroll’s brief continues by outlining the four reasons Trump’s “requested relief” is a substance-free and legally unwarranted ask.
There is absolutely no basis in law for Trump’s requested relief. His position fails for four independent reasons.
First, Federal Rule of Civil Procedure 62(b) does not authorize unsecured stays.
Second, Trump bears the burden of proof under Rule 62(b) and has obviously failed to meet that burden given that he has failed to submit any evidence with his motion.
Third, under controlling Second Circuit law, Trump has not made the showings necessary to obtain relief from the presumptive obligation to post a full supersedeas bond.
Finally, even if the Court were to apply the traditional four-factor stay framework (which does not apply here), Trump has not shown a likelihood of success in prevailing on his anticipated post-trial motions and every other relevant factor cuts against him.
In short, Trump is asking for something he is not entitled to. He offers no evidence or showings. And, despite Trump’s optimistic rhetoric, he is not getting off the hook. Therefore, Judge Kaplan should swat Trump’s primary and secondary requests away.
Accordingly, Trump’s motion should be denied—including the cursory, unsupported request for a reduction in the bond amount that appears at the end of his brief.
Carroll then explains her position.
ARGUMENT
I. TRUMP IS NOT ENTITLED TO AN UNSECURED STAY UNDER RULE 62(B)
Carroll points out that Trump can ask Kaplan to waive the bond requirement only if he puts up other collateral.
To secure a stay of judgment enforcement pending appeal, a party must post a supersedeas bond covering the full amount of the judgment plus interest. This requirement may be waived in favor of “other security,” but only when the movant provides an acceptable alternative means of securing the judgment
Trump, of course, offered a fantasy version of the waiving requirement, as Carroll points out.
Contrary to Trump’s view, these factors are “not a device for easing the judgment burden on the losing party.” They are, in fact, the opposite—“a tool geared toward ensuring a meaningful outcome for the prevailing party.”
As a result, “the party seeking the stay without a bond has the burden of providing specific reasons why the court should depart from the standard requirement of granting a stay only after posting of a supersedeas bond in the full amount of the judgment.”
The difference between a bond and a supersedeas bond is something lawyers will appreciate. The rest of us should interpret it as “if you don’t want to put up A, then put up B” — where A and B are different but equal.
Carroll then goes granular in her explanation of why Trump’s demand for unsecured action is a non-starter.
A. Rule 62(b) Does Not Authorize an Entirely Unsecured Stay
The first and most basic reason why Trump’s request should be denied is that Rule 62(b) does not authorize fully unsecured stays. The relief that Trump seeks is thus forbidden.
Not only is Trump’s demand forbidden, he offers bupkis in support, except something his lawyers found in the attic.
But what Trump proposes here is nothing at all. In support of his position, he fails to cite a single controlling (or even persuasive) case. Instead, he gestures to a handful of scattered out-of circuit district court cases, most of which were decided, as teenagers say today, in the “last century.”
B. Trump Has Utterly Failed to Meet His Burden in Seeking Relief
Carroll dismisses Trump’s “trust me” strategy by pointing out that Courts are not in the habit of guessing.
A second and separate reason to deny Trump’s motion is his complete failure to carry his evidentiary burden. Rule 62(b) does not require courts to engage in guesswork or speculation, or to accept a party’s assertion that they are good for the money at face value.
C. The Nassau Factors Favor Carroll
Carroll then explains that even in the hypothetical case that Trump had requested something he was entitled to — and had offered evidence he was entitled to it — he was still not legally entitled to it because his argument for it is incomplete, unsupported, and meritless.
Even if the Court were to overlook Trump’s request for unavailable relief—and his failure to offer evidence despite his burden—it should deny his motion for yet a third reason: Trump cannot show that any of the Nassau factors (let alone a majority of them) support his position. In fact, Trump does not even address all of these factors, and the arguments that he does make are meritless
For the next five pages, Carroll’s lawyers specify the “Nassau factors’ and why Trump’s lawyers have failed to meet them.
II. TRUMP IS NOT ENTITLED TO A STAY UNDER THE FOUR-FACTOR TEST
In this section, Carroll explains that if somehow Trump still has Kaplan’s attention, there is yet another reason Kaplan should deny his request.
Given that Trump has failed on three separate grounds to support his request for relief, the Court can and should deny his motion under Rule 62(b) alone. But if the Court proceeds to consider any of the other arguments that Trump raises in his brief, it should deem them meritless as well.
But before they get to their reasoning, Carroll’s lawyers call Trump’s lawyers incompetent for citing the wrong legal authority.
A. The [four factor] Test Set Forth in Nken Does Not Apply Here
As an alternative to the established Rule 62(b) framework discussed above, Trump argues that he is somehow entitled to a stay under the “traditional four-factor test for equitable relief.” But requests for relief from the bond requirement in Rule 62(b) are governed by Nassau, not by the four-factor test recognized in Nken.
Nevertheless, Carroll’s team, being the thorough lawyers they are, argue that even if the Four Factor test was relevant, Trump still cannot make his case for relief.
B. Trump Cannot Satisfy the Traditional Four-Factor Test in Any Event
But even if Nken did apply, Trump could not satisfy his burden under its four factors.
At this point, the reader would be right to suspect that Carroll’s lawyers are gleefully piling on. It is the top of the ninth, they are ahead by 10 runs, but they are still swinging for the fences. They explain why Trump's lawyers are still not right, even with the wrong case. They go through each of the four factors
1. Likelihood of Success on the Merits
They start by calling Trump’s claim the award will inevitably be reduced magical thinking.
First and most fundamentally, if the Nken framework applies, Trump’s motion should be denied because he has not established “the requisite strong likelihood of success” in reducing the jury award.
For the next 11 pages, they explain why Trump’s chances of the award being reduced are ‘none’ and ‘less than none’.
2. Trump Will Not Be Irreparably Harmed if a Stay is Denied
Again, Carroll’s team points out that Trump pulls things out of his ass with no proof to back them up.
It is “well established that an irreparable injury is an injury that is not remote or speculative but actual and imminent, and for which a monetary award cannot be adequate compensation.”
Trump insists, without more, that he will incur “substantial, non-recoverable financial costs” if he must post a supersedeas bond. But this vague assertion of harm falls well short of establishing cognizable irreparable injury in this context.
3. By Contrast, a Stay Would Substantially Injure Carroll
At this point, Carroll’s lawyers tell Trump to go to hell. It is the victim (Carroll) who would be victimized if the perp (Trump) got his way — because said perp is a lying weasel, who regularly stiffs people. And besides, who the hell knows how much money he has anyway? Or in their words:
Trump argues that a stay will not injure Carroll because an “unsecured stay while post-trial motions are pending poses minimal risks.” As explained above, however, Trump’s premise is factually incorrect. Indeed, it is hard to imagine greater risk and potential harm to Carroll than requiring her to bear the burden of the uncertainty surrounding Trump’s finances and assets (not to mention the collectability of a judgment).
4. The Public Interest Weighs Against a Stay
Lastly, Carroll’s lawyers dismiss Trump’s throwaway attempt to use the “public interest” as justification to sit on his wallet.
Finally, the public interest cuts against a stay as well. Trump offers only a single sentence on this point, asserting that the “public interest … weighs against imposing additional, needless financial consequences from a manifestly excessive verdict.”
Then they twist the knife by pointing out that everyone is equal in front of the law, no matter how inflated their ego.
But Trump has it exactly backwards. Rule 62(b)’s plain text, which applies to all civil litigants in federal court and has no exception for former presidents or people who claim to be very rich, reflects a public interest against unsecured stays.
III. TRUMP’S PROPOSAL OF A PARTIAL BOND IS MERITLESS
Here, they point out what Kaplan already knows. Trump's legal team has nothing in the tank. Even their request for a reduced bond lacks any substance.
As an apparent fallback, Trump asks this Court to permit a “substantially reduced bond.” This request should be rejected on its face: he offers virtually no reasoning to support it; he has otherwise failed to satisfy any of the requirements set forth in Rule 62(b); and he has not provided any details about the terms of, or actual availability of, a partial bond for any amount.
Which leads to the inevitable.
CONCLUSION
For the foregoing reasons, the Court should deny Trump’s motion.
As stated above, Trump’s lawyers have two days to respond. What the hell are they going to say? (Watch this space.)
Desperate attempts by a desperate man who continues to plea his innocence, when we all know he’s guilty as hell, he’s pathetic and I am relishing his suffering, thank you Pitt and I look forward to the next diary