The MeidasTouch Podcast - Trump Lawyer Makes FATAL ERROR to Jury at Trial

Episode Date: January 20, 2024

MeidasTouch host Ben Meiselas reports on the egregious false statements of law that Donald Trump’s lawyer Alina Habba gave to the jury at the E Jean Carroll federal defamation trial. Upgrade your sleep with Miracle Made! Go to https://TryMiracle.com/MEIDAS and use the code MEIDAS to claim your FREE 3 PIECE TOWEL SET and SAVE over 40% OFF. Visit https://meidastouch.com for more! Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

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free of charge bet mgm operates pursuant to an operating agreement with iGaming ontario let's talk about alina haba's latest fatal error where she misrepresented the law to the jury in the defamation trial against Donald Trump that just completed week one brought by E. Jean Carroll. By the way, I'm Ben Myselis. This is the Midas Touch Network. So Alina Haba told the jury in her opening statements that the law imposes a duty on victims who have been defamed to mitigate their damages and that E. Jean Carroll has not fulfilled her duty to mitigate

and has exacerbated her own damages by going on TV and by E. Jean Carroll saying that what Donald Trump has been saying about her is false and that she is a victim of Donald Trump's sexual assault. And according to Alina Haba, E. Jean Carroll's violated her duty to mitigate by doing that. And on its face, that didn't really make a lot of sense. So Judge Kaplan told the parties over the weekend after the first week of trial concluded, can you please give me the New York law

on the issue of a duty to mitigate for those who are intentionally and maliciously defamed the way we've already determined that E. Jean Carroll was. And sure enough, the law does not impose a duty to mitigate. In other words, Alina Haba falsely told the jury what the law says when the law doesn't say that. That's not what the law said. Also, what became clear in this briefing is that Alina Haba also failed to assert duty to mitigate as an affirmative defense in any of her pleadings. So even if New York law recognized that there was a duty to mitigate defamation damages

by victims of defamatory statements, Alina Haba once again would have waived that affirmative defense. Let's just take a look at the briefing here where I can kind of show you that point. So first off, what did Alina Haba say during her opening statement? She said, I need you as a jury, because she's talking to the jury in her opening statements, I need you as a jury to remember this. And this is a very important point. Ms. Carroll had a duty to minimize the effect of these statements, not exacerbate them,

as I will show she did when she ignored that duty and she did the exact opposite and still does today. So when E. Jean Carroll stands up for herself and talks about being the victim of abuse and rape by Donald Trump, Alina Habas says that E. Jean Carroll has violated her duty to mitigate and has exacerbated her own damages against herself. In other words, what Alina Haba, I guess, is saying is that victims of sexual abuse who have been defamed need to be quiet about it.

Um, because if they speak up about it, they will exacerbate their damages, which makes no sense because one of the things that victims of defamation can do is resort to what's called self-help and go out there and basically say that the defamatory statements against them are false. And if that would be used against them, the whole law would otherwise make no sense. But here's what Alina Haba said as well. Haba repeatedly claimed that Ms. Carroll had a legal duty to mitigate or minimize the damages that resulted from Mr. Trump's defamatory statements. She had a duty to minimize the effects. It's not my client.

It's not Mr. Trump's duty. That's hers. Ms. Haba further argued that Ms. Carroll violated that supposed duty by publicly stating Mr. Trump's claims were false. For example, Ms. Habba asserted as follows, and it says, I need you as a jury to remember this, that portion right there. So the judge went to the parties, please brief this issue. And it turns out that New York law specifically states that where you're dealing with what's called an intentional tort, where the defamation is done intentionally and with malice, there is no duty to mitigate. It would place victims in an untenable situation. And then if the victim went out there and then made a statement that

what the abuser, what the defamer or the abuser said was false, then you're going to blame the victim for that. It would just simply make no sense at all. And that's what Roberta Kaplan, E. Jean Carroll's lawyers pointed out. But when you go to Alina Habba's brief, like it's so disingenuous. Habba's such a horrible lawyer. It's sometimes hard for me to just even process or articulate what a bad lawyer Habba is. So when I'm looking at Alina Habba's brief on the issue of, is there a duty to mitigate? And here's what Haba said. She said, plaintiff had an affirmative, non-waivable duty to minimize the effect of the alleged defamation. So Donald Trump can just defame her, rape her, and then it's on her.

And it's E. Jean Carroll's fault, basically what Alina Haba was arguing. And then it says, the court previously acknowledged that the New York law requires plaintiffs to use reasonable and proper effects to minimize the effects of defamation. And when you look at this, it just cites a whole bunch of like, a whole paragraph of like cases without even really explaining what any of these cases are, just a messy brief. And then it says, in this case from 1919 called Denorsk is the short version of the case. The seminal case on this issue under New York law, which was cited in the court's January 17, 2024 oral order, the New York Court of Appeals had the rule is of general and widespread application that one who has been injured either in his person or his property by the wrongful actor default of another is under an obligatory duty to make

reasonable efforts to minimize the damages liable to result from such injury. And that if he does not make such a reasonable effort, he will be debarred from recovering for the additional damages which result from such failure. Well, okay, well that deals with like other things. Like I guess if someone was in a car accident and they were injured and they didn't go to the hospital, right? And they made the injury worse and worse and worse by not getting treatment and then blame the person who hit their car for causing all of the pain and suffering if they could mitigate or minimize the damages.

But that's like a car accident or 1919, maybe a horse and buggy type of accident when that case was being written. But it doesn't mean like when you're the victim of defamation that that duty attaches. So I had to read this case. So I read the DeNorse case because the way it was being selectively cited by Alina Habba, I read DeNorse to stand for the opposite proposition of Alina Habba saying it. Habba cites that general proposition like in the car accident example I just gave you,

where of course there's a duty to mitigate your damages. You can't not go to the hospital, you know, and then get, and then as a result, develop an infection and then blame the infection. You have some duty to get treated and stop the injury. But that didn't apply to defamation. And Dynorsk, this case that Alina Habba cites, says the exact opposite of what Alina Habba said. So that just was like a red flag.

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to mitigate by E. Jean Carroll, which there was not a duty to mitigate, and Alina Haba, you just inform the jury of the wrong law. Assuming there was, did Alina Haba add this into the answer, into the pleading paper as an affirmative defense to be able to even assert it. And I looked into it and then here's what Alina Habas says. Alina Habas says, I didn't waive it because here's what I said when we wrote the 17th affirmative defense in our answer to the claim of defamation against us. Here, similarly, the 17th affirmative defense of Donald Trump's amended answer states the following, and this

is what Alina Habas says constitutes the affirmative defense of mitigation. Quote, neither defendant nor the challenge statements approximately caused any injury that the plaintiff allegedly suffered. Throughout the trial, when the defense has argued that Ms. Carroll failed to minimize the effect of any alleged defamation, the argument has largely been one of causation. Did you notice that in that quote I gave you, it didn't use any of the words mitigation? If you were going to assert mitigation as an affirmative defense, you know what you would say? Mitigation. You would say defendant hereby asserts for affirmative defense number 17, mitigation and, not the affirmative defense of mitigating once the injury has been caused.

So Alina Haba there also being deceitful because you didn't assert mitigation. There's no word mitigation there. And then Alina Haba says, nonetheless, even if this court determines that that defense was not properly raised, pause, because it was not properly raised. You didn't assert it there. It was not properly raised, pause, because it was not properly raised. You didn't assert it there. It was not properly raised in the answer. Any such

deficiency was cured when Donald Trump raised the defense of failure to mitigate in his pre-trial order. So Alina Habba is saying, even if we didn't do what everyone's supposed to do and say failure to mitigate in the answer where it belongs in a pretrial order, we set it. Okay, well, let's talk about, well, that's not the way it works, number one, but let's take a look at the pretrial order. Contrary to plaintiff's contention, she did not sustain any reputational or economic harm as a result of the statements. Even if she did, any harm she sustained was de minimis and the result of plaintiff's own conduct. Okay. Well, again, you're not asserting mitigation. You're blaming the victim right there,

but that's not mitigation. So number one, is mitigation even an affirmative defense? Is there a duty to mitigate by E. Jean Carroll? The answer is no. When I read the case, the answer is no. Even if there is a duty to mitigate, did Alina Haba assert it in the affirmative defense of the answer where it belongs? No. So then Alina Haba says, but I put it in the pretrial order. So I look at the pretrial order and the pretrial order doesn't say mitigation. It blames the victim, but doesn't say anything about mitigation at all. So no, it doesn't. It's not the law. And you never asserted even if it was the law.

And thankfully, E. Jean Carroll's lawyer, Roberta Kaplan, you know, they're smart and they just write the same thing. This is what they say. No such mitigation of damages, defense to defamation exists under New York law. And alternatively, Trump, Mr. Trump, defendant Trump, waived such any argument. We respectfully request that the court issue a curative instruction to the jury prior to closing arguments. Our proposed curative instruction is attached to this letter for the court's consideration. Tell the jury that mitigation is not an affirmative defense and that what Alina Haba said was false and just untrue. So if you go into just like what the law is first and making arguments to the jury about a

duty to mitigate in her opening, Ms. Habba egregiously misdescribed the law. As the Supreme Court has explained, the first remedy of any victim of defamation is self-help, using available opportunities to contradict the lie. If Ms. Habba's position were correct, then engaging in such self-help, in other words, publicly stating that the defamatory attacks are false, would itself violate a legal duty. Neither precedent nor common sense supports that claim. And it would be particularly shocking to hold that survivors of sexual abuse must keep silent even as their abuser defames them publicly. And then it goes on to talk about how Ms. Haba's statements to the jury that Ms. Carroll owed a duty to mitigate or minimize damages is also contrary to New York law as articulated by the state's highest court,

which has held that no such duty exists in cases of defamation involving actual malice. As Your Honor correctly noted in addressing a claim of libel, the New York Court of Appeal held more than 100 years ago that there is no obligatory burden for victims of defamation and other intentional torts to avert the injurious consequences

of a tortfeasor's misconduct. That's the law that Alina Haba doesn't cite. Alina Haba cites the other proposition in the case, which doesn't deal with defamation, with malice. And so it's on so many levels, as you can see, it's horrible lawyering. It's misinforming the courts. Frankly, I believe it's sanctionable conduct and Haba just lies to the jury. So what do I think is going to happen? There's going to be what's called a curative instruction. I think federal judge Kaplan's going to tell the jury that what you heard Ms. Habba say was false. It was inaccurate. There is no duty to mitigate,

and it was not true. You must disregard everything Ms. Habba said about that. That's what will happen. Just horrible lawyering by Alina Ha. Just the worst. The worst of the worst. And once again, showing you failed to even assert it in your answer. You waived it again the same way you didn't assert absolute presidential immunity in the answer and waived that. I know there's lots of lawyer jokes out there already, but this is some next level stuff. I'm Ben Micellis from the Midas Touch Network. Hit subscribe. We're on our way to 2 million subscribers. Thanks to your support. Let's get there together. Let's try to get there soon, but this is some next level stuff. I'm Ben Micellis from the Midas Touch Network. Hit subscribe. We're on our way to 2 million subscribers. Thanks to your support.

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