Alina Habba's not faking it.

After a week of legal and PR disasters, Habba’s glaring incompetence becomes a centerpiece in Trump’s second defamation trial.

Ed note: Trump and his attorney are playing by the “defy and disrespect American institutions” playbook in the second defamation trial against Trump by New York writer E. Jean Carroll.  But since 2020 that’s ultimately never been a winning strategy for Trump in the federal judicial process.  And now it’s being hobbled by Trump’s lead attorney Alina Habba who once said she’d rather be “pretty” than “smart” because she could fake the smart stuff.  Habba’s incompetence last week constitutes Exhibit A: she’s not faking it. Going up against a respected federal judge and convincing a jury of Trump’s innocence requires a level of “smart” so far not shown by Habba – or Donald Trump.

Trump lawyer Alina Habba recently told podcast host Bryan Callen that she’d rather be “pretty” than “smart,” because “if you’re pretty you can always fake” being intelligent. The idea is, there will always be enough men around who are more than willing to help a pretty woman get by in a pinch.

The attractive Habba who favors low-cut dresses and bears a passing resemblance to Trump’s third wife Melania, is putting that theory to test in the second E. Jean Carroll v. Donald Trump trial.  

Habba now ranks as Trump’s lead attorney as he returns to court a second time in the Carroll case, despite a May 9 jury verdict that found him guilty of defaming her over charges he sexually assaulted her in the late 90s. The new charges accuse Trump of still calling her a liar, and worse, even though found guilty by the May jury, assessed $5M in damages, and instructed by the court never to defame Carroll again, which he repeatedly and publicly has. 

Come and git it!
Since then Trump has defiantly amped up the threat, lies, and insults – dog whistles to followers responsible for an avalanche of social media posts, letters, and phone threats of their own.  Like a dinner bell for hungry ranchhands, Trump’s affronts have launched another eight months of online insults and threats against Carroll.  The onslaught has been so bad, the New York writer said in court last week she’s left her New York residence for a cabin in the woods at some undisclosed location and sleeps with a loaded gun near her bed. 

Trump’s flaunting the May 9 verdict began the following day on May 10 in a CNN Town Hall hosted by Kaitlin Collins. As the audience was filled only with fervent Trump followers, Collins’ ability to push back on anything he did or said was hobbled, given the overwhelmingly pro-Trump format.

Have no idea, whack job, and the like
“This woman,” he began, “I don’t know her, never met, and have no idea who she is.” He added: “She’s a whack job,” drawing laughter and applause from the Trump-entranced audience, completely ignoring the one-day-old court order. Always playing to the crowd, Trump has been offering up the oft-repeated trope he uses – in rallies, on Truth Social, and television appearances – that Carroll was not his “type,” and was in no way attractive enough to be interested in, let alone rape (my inference of the three probable missing last words).

This overlooked the just-completed trial’s evidence of Trump’s misidentifying Carroll as his ex-wife Marla Maples in a photo shown to him during his deposition. Trump carried on a torrid, public affair with Maples while still married to first wife Ivana.  But Maples was not in the photo although Trump’s first wife Ivana and E. Jean Carroll were. Bottom line: Trump mistook Carroll for the hot woman with whom he would have an affair and for whom he would leave first wife Ivana to become Trump wife #2.

How much will it take…?
In opening statements, Shawn Crowley, one of Carroll’s attorneys, said the New York writer returned to court seeking another, more punitive financial judgment against Trump as he has never abided by the conditions of the first one. In challenging the jurors, Crowley said: “Your job is to answer the question, ‘How much will it take to get him to stop?’”

Back to Habba
When a lawyer has a client who acts like a wrecking ball in and out of the courtroom, it’s a good idea that he or she hire someone with an undisputed legal record and highly recognized personal reputation so that some of that person’s propriety can rub off on him or her.  Yet the New Jersey-born daughter of Iraqi immigrants who came to this country to avoid persecution from dictator Saddam Hussein has become so tied to would-be dictator Donald Trump it’s become apparent that enabling his worst instincts has become her game plan, too.  

A string of goofs (12 reprimands or legal brushbacks on the opening day of the trial alone) is making Trump’s uphill battle against Carroll, given the the May verdict and the evidence, even more difficult. And it’s showcasing how Trump’s inability to recruit and hold top-notch legal talent may doom his chances in court.

Breaking his leash
Take New York attorney Joe Tacopina who led Trump’s defense in the April trial and was slated to return in the same capacity for this one. But the bulldog-like Tacopina, who last April aggressively challenged Carroll and her assertions, quit Trump’s team on Monday, Jan. 15, the day before the opening of the second Carroll trial.

That’s too bad because, as contentious as Tacopina was on Trump’s behalf, he nonetheless respected the judge and the court throughout the April trial’s progress – sharing pleasantries with Judge Kaplan and court personnel, plaintiff’s attorneys, and Carroll herself at the beginning of each day’s proceedings and then shaking hands with Carroll following her winning verdict. When Carroll concluded the hand-shaking with some straightforward parting words, “You know I’m right!,” Tacopina offered no smart alecky response in return, Carroll said.

Failing grade
This is not the way with his replacement, Habba.  A New Jersey lawyer of a small-to-mid level firm who reportedly met Trump as a member of his Bedminster NJ golf club, the new lead attorney seems bent on mirroring her client’s arrogance and disrespect of the judicial system, judge, court officials, and certainly also the plaintiff and her counsel.  But as last week’s performance shows, Habba’s daily inability to execute or even understand the most basic elements of lawyering undercuts her extreme aggressiveness. What should look menacing, more often appears comically inept.

To wit: 
Habba began cross examining Carroll using a copy of a 2019 New York magazine article in which Carroll first revealed Trump's sexual assault of her in the mid to late ‘90s.  She didn’t get far when presiding Judge Lewis Kaplan interrupted, explaining she could not continue her line of questioning unless Carroll’s magazine piece had first been entered into evidence – a required procedure that makes critical information, data, or physical effects available to all parties in the proceedings. “Its “lawyering 101,” Kaplan said.

Instead of expressing contrition, Habba took umbrage at the instruction saying, irritably: “‘I’m trying to get it into evidence,” as if the judge were deliberately picking on her, so she must show her indignation. Kaplan then called for an adjournment, giving Habba a chance to correct her error in private. He also guided her on what to do: “When you don’t know what to do as a trial lawyer, look at the ‘(Federal) Rules of Evidence’” (a 52-year-old set of procedures for how to do things in court), he said.  

But when Habba returned from the adjournment, she had ignored the judge’s admonition, again beginning to use the same un-evidenced document in Carroll’s cross examination.  This time, the judge showed no mercy — speaking sternly, requiring the court recorder delete Habba’s line of questioning from the record, and becoming increasingly wary Habba might be playing a game of “How much can I get away with? or, more likely, “How much can I make it look like the judge is treating me unfairly?”

In another example of malfeasance, Habba tried to press Carroll on the believability of Trump’s attacking her – something Judge Kaplan had from the start stipulated was out of bounds, as the finding had already been reached by a jury of Trump’s peers in May. 

No respect, no manners
Yet Habba again pressed forward against the court’s instruction she not try to relitigate the April trial and its May 9 verdict.  Minnesota lawyer and court-watcher Bruce Rivers said that, instead of singling her out loudly and publicly for denunciation, Kaplan called for a sidebar to re-explain: she may not reengage in that line of questioning. 

Yet following the sidebar, Habba again defied the judge’s words and pursued the same line of questioning. The judge responded by telling the court reporter the question and answer must be stricken, instructing the jury to disregard it, and this time admonishing Habba for “disregarding my ruling.”  

In both instances, Habba acted as though the judge were picking on her, as reported by NBC legal analyst Lisa Rubin who is in court, daily, covering the proceedings.  When told she has done something wrong, Habba routinely responds by showing a Trump-like disdain for the judge, in chip-on-the-shoulder fashion.

As if her repeated goofs were not enough, Habba served up more outrage on Friday by filing a motion for mistrial, thwarting the judge’s stipulation that the purpose of the second trial was not to relitigate the spring proceeding or verdict. Because the plaintiff, defendant, and issues were all the same, the second trial functions only to establish damages for violating the conditions of the first proceeding, not to start all over again. 

Misinterpreted or misrepresented? You decide.
Undeterred by either judicial edict or evidence, Habba’s motion smacked more of politics than legality as the filing relied on either deliberate or mistaken interpretations of American law. Two misinterpretations of American precedent illustrate Habba’s bad faith, and by extension Trump’s.

Issue one + background:  After Carroll published in 2019 her account of Trump’s sexual assault against her, Trump responded by Tweeting and spewing insults from the Oval Office.  His followers responded, emailing and Tweeting rape and death threats.  Carroll, now horrified when opening her emails, deleted a few of the worst. 

Habba called for a mistrial claiming Carroll had broken the law when she deleted the emails and thus removed important evidence from the proceedings. Habba asserted the deletions violated federal law that outlines emails must be preserved for litigation. Judge Kaplan rejected the motion (jan 20 2024 newsweek.com).

“Up is down” and vice versa
In defense of Judge Kaplan’s rejection, former DOJ official Mary McCord on MSNBC described Habba’s argument as having no basis in law or common decency.

“To suggest Carroll had an obligation and she violated it denies that human dignity that you have to sit there, take it, read it over and over as it’s coming in your social media. That’s outrageous,” McCord said.

As evidence of the upside down nature of Habba’s reasoning, McCord described the federal law as referring to people who deleted evidence that would be harmful to them in a criminal proceeding.  This was just the opposite: the deleted emails would have helped prove Carroll’s case. If anyone were harmed it was Carroll, not Trump whose disgusting messages (or those from his followers) would hurt him.

Issue Two.  In another letter to Judge Kaplan, Habba again misinterpreted or, worse, deliberately misrepresented a fundamental precedent of American law that’s been on the books since 1909.  Habba asked that Trump’s financial obligations be lessened because, “Carroll failed to protect herself from defamation by repeatedly speaking out publicly.  This (not Trump’s disparagement of Carroll) is what prompted retaliation on the part of his followers,” according to Habba who pointed the finger at Carroll herself for causing the backlash. “The harm is attributable to her own conduct,” the Trump attorney declared, citing a 1909 New York court ruling and the precedent it has established for the last 115 years. 

Perversion of precedent
NBC legal analyst Lisa Rubin said the 1909 law says no such thing – in fact, just the opposite, calling Habba’s interpretation a “perversion of the precedent.”
Rubin said:
“The 1909 case concluded that litigants in defamation cases have the right to avoid being defamed, but not the legal duty to stay silent about their defamation.

“What’s shocking to me is that Alina Habba’s brief, while it does contain a quote from that case, misquotes the rest of the case, which stands for the proposition that a victim of defamation has the right to mitigate (make less severe by being quiet– my add), but doesn’t have the duty,” meaning a defamed person may choose to, but need not be quiet about how they have been negatively affected by the lies aimed at them.

Carroll lead attorney Roberta Kaplan (no relation to the judge) agreed, filing a motion rejecting Habba’s twisted interpretation of the ruling. In fact, “the precedent…protects the victim’s right to speak out against their assault…Both parties know it, but only one cited it correctly,” the Carroll attorney said.

“Glaringly obvious”
Both Habba’s deliberate or unconscious refusals to comply with or correctly interpret American law convinced MSNBC host and lawyer Katie Phang to describe Habba as failing her client and profession, as evidenced on the most basic level of not knowing what to do in court. “Habba doesn’t know what the hell she’s doing.  It is glaringly obvious now.  It is shown she does not know how to enter into evidence. She does not know how to impeach a witness (presenting evidence or asking questions that contradict their testimony or reveal a bias, inconsistency, or falsehood in their statements). She does not have the requisite trial skills to defend a former president of the United States in a multi-million dollar defamation trial.”

End game
Maybe Habba’s biggest mistake is failing to understand how a lawyer’s inability to rise above her client’s basest instincts will hurt him, no matter the politics of the moment. Trump wants more to win in the court of public opinion, but a loss at trial can also have real-life consequences – and may, longer term, hurt him with voters in the general election who are not part of Trump’s base/cult.  It’s the malfeasance of not looking beyond a “burn the house down” impulse of Trump and his world.

Lisa Rubin believes a strategy of denigrating the court and its judges is bound to backfire with the people who matter most in the courtroom: the jurors.  Rubin says those nine men and women usually look up to the judge “more than any other person in the courtroom.”  To the extent they’re picking up on the tension between Trump and Judge Kaplan, their affinity with the judge is more likely to win out. 

“You just don’t talk that way…”
CNN legal analyst Norm Eisen agrees, and references Habba’s disrespectful behavior as short-sighted as well as disrespectful. “You just don’t talk that way to a federal judge,” he said. This underscores Habba’s poor judgment in telling Judge Kaplan she “didn’t appreciate being talked to” sternly after repeated refusals to follow the judge’s orders.  Eisen predicted the tension will build throughout the trial’s duration, describing Kaplan as “sitting on the edge of his chair and getting fed up.”

The danger Trump poses in the courtroom extends beyond the judge to the nine-person jury holding Trump’s financial fate in their hands. Jury members know that thanks to Trump they’ve been put in a dangerous position. Their “anonymous” status – with their names having been withheld from the lawyers, press, and court officials and the judge’s urging them not to reveal their real names even to fellow jurors – highlights the harm that may come to them from Trump’s followers, their anonymity the same used to protect jurors in mob cases.  According to MSNBC analyst Katty Kay, in a way, Trump’s threat to Carroll rings an alarm bell to the nine-person jury panel, allowing them now to better understand Carroll’s plight.

Conway: “Something’s seriously wrong with him”
Constitutional lawyer and legal activist George Conway believes that Trump’s menacing behavior – looking threateningly at Carroll and talking back to the judge as if he were a subordinate – will backfire, revealing a menacing side of the former president jurors haven’t seen before or in quite the same way:
“There’s something about watching Donald Trump in person. (Outside of court) Trump is funny, he’s just doing his schtick.  But when you see him up close and personal you begin to see there’s something seriously wrong with him.” Conway said.  He added: “I think what this jury is going to learn is that they’re in a solemn proceeding, taking this seriously and here they have this psychopath right there” (the weekend MSNBC 20 jan 2024).

Will Trump stay with Habba or will she quit, following in the footsteps of at least 15 known attorneys who since November 10, 2020 have quit representing him, all for unstated reasons left only to our imagination. In addition to Tacopina, lawyers who left include noted Georgia attorney Drew Findling, the attorneys who defended the former president throughout two impeachments, and corporate lawyers who quit over his attempts to decertify the Pennsylvania 2020 election results and sue Maricopa County, Arizona election poll workers over baseless charges the election was rigged.

Late night comics weigh in
Whatever Habba’s fate, at least she may be enjoying a new-found fame, however fleeting, that comes at the expense of her reputation.  Last weekend, SNL accurately parodied the president’s lawyer by quoting Habba’s opening trial statement, admitting: “I don’t know what I’m doing” after Judge Kaplan shot down a long list of pre-trial motions that read more like political talking points than legal arguments. 

On Thursday, Late Night host Seth Meyers described Judge Kaplan’s cryptic response, “This motion is denied,” following the mistrial filing as “brutal.” Meyers likened it to telling your kids how to respond to a weird guy on the subway. “Just pretend she’s not here.” 

Perhaps the unkindest cut came from Late Show host Stephen Colbert on Friday who responded to Habba’s “I can fake being smart” quip with this conclusion: “No, you can’t.”

With trial proceedings canceled until Wednesday because of Covid, we have yet to find out how and if Habba picks up the pieces of the disastrous first four days based on a lack of legal progress and the impressions she’s made on the judge, if not the jurors.  Court-watchers may assume the former fashion accessories consultant and Melania near-twin will look pretty.  But appearing smart is less conclusive, as that will depend on the legal stylings of Donald Trump. 

– trg

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An earlier posting referred to the magazine publishing Ms. Carroll’s contention that Trump raped her as The New Yorker. It was New York magazine. TRG regrets the error.