The surprise concession comes as the Justice Department continues its fight to represent the president, even though Trump’s days in office are rapidly drawing to a close. The department’s civil division is appealing a ruling by U.S. District Judge A. Lewis Kaplan that excluded its controversial intervention in the case.
Kaplan rejected the theory that Trump should be treated as a regular federal employee covered under the Federal Tort Claims Act, and that disparaging Carroll was conduct within the scope of his employment.
Carroll’s legal team in a filing Thursday proposed proceeding with discovery while the Justice Department appeals Kaplan’s ruling, but said it would consent to waiting until the appeal is decided to depose the outgoing president and to collect a DNA sample from him. Trump’s side has proposed halting all proceedings until the U.S. Court of Appeals for the 2nd Circuit delivers its finding — a process that could take months.
Carroll says she has the dress she wore when she was allegedly assaulted by Trump in the dressing room of Bergdorf Goodman in Manhattan in the 1990s and her team expects to compare DNA found on the dress to Trump’s genetic sample. Trump has adamantly denied the encounter.
Typically, documents are exchanged before the taking of depositions.
Before the case got transferred to federal court in Manhattan, when the case was still in a state trial court where it was filed, Trump had begun providing records to the plaintiff’s side — undercutting Trump’s claim that he would be irreparably harmed by the case advancing, Carroll’s lawyers Roberta Kaplan and Joshua Matz wrote in the filing.
The president “has already engaged in substantial document discovery” and “served extensive document requests and interrogatories on Ms. Carroll . . . ” before the case’s removal from state court, the lawyers wrote.
The Justice Department intervened at the point in the state court proceeding where deadlines were quickly approaching for Trump to give the DNA sample and sit for a deposition — though Carroll’s side was open to working around Trump’s schedule.
Trump has until Monday to respond to their legal memo.
Kaplan and Matz said any attempt by Trump to seek a favorable outcome on the grounds that he may be in office another term — a reference to his persistent denial of the election results — must be flatly ignored.
“The Court need not indulge such dangerous nonsense in deciding whether to stay proceedings here,” a footnote in the filing says.
Trump’s personal lawyer, Marc Kasowitz, did not immediately respond to a request for comment. Kasowitz was ordered by Kaplan to appear after Justice Department lawyers were excused from the case.
Carroll, in her 2019 memoir, went public with a story about Trump sexually assaulting her. Trump denied even knowing her, even though they were once photographed together, and he suggested that nothing could have happened because he didn’t find her attractive.