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Behind scenes, Trump’s lawyer disavowed client’s claim he’d ‘confront’ E. Jean Carroll to judge: ‘You understand what I am dealing with’

Donald Trump visit to Ireland

Former President Donald Trump on the 4th hole at Trump International Golf Links & Hotel in Doonbeg, Co. Clare on May 4, 2023, during his visit to Ireland. (Press Association via AP Images)

Hours after former President Donald Trump told reporters in Ireland that he’d fly back to New York to “confront” E. Jean Carroll in her civil rape and defamation case against him, his attorney emphatically denied to a federal judge that his client would testify.

“I know you understand what I am dealing with,” Trump’s attorney Joe Tacopina told Senior U.S. District Judge Lewis Kaplan during a sidebar conference on Thursday.

Trump’s remarks roiled his ongoing trial in a civil rape and defamation lawsuit brought by Carroll. The “Ask E. Jean” columnist claims that Trump sexually assaulted her inside a dressing room of the Bergdorf Goodman department store in the mid-1990s, then lied about it. Time and again, in a private huddle between the judge and lawyers, Tacopina affirmed his client won’t take the witness stand to answer those claims.

‘A fully fair trial’

Tacopina, who also represents the former president in his Manhattan criminal case, repeatedly denied that Trump would testify. The conversation took place outside the earshot of the press and jury, but a courtroom stenographer was still typing away.

Just before Tacopina’s remark, Judge Kaplan made clear that he didn’t believe Tacopina was misleading him over his client’s decision.

“I’m not implying dishonesty on your part,” Kaplan told Tacopina, according to the transcript.

Tacopina declined to comment on the transcript of the conversation.

Joe Tacopina

In this March 17, 2011 file photo, attorney Joseph Tacopina speaks to the media outside Superior Court in New Haven, Conn. (AP Photo/Jessica Hill, File)

In addition to attacking Carroll, Trump has repeatedly attacked the judge in public remarks and on social media. Even during the private huddle, the judge emphasized to Tacopina that he was trying to protect his client’s rights.

“I have issues, too, which is to run this trial fairly and appropriately, not to waste the jury’s time or anybody else’s time, and to make sure both sides, including your client, have a fully fair trial,” Kaplan said.

Carroll’s attorney Michael Ferrara, a former federal prosecutor, started to say that there was “no suggestion that Mr. Trump has not had a fully fair trial,” when the judge incredulously interrupted him.

“Oh, really,” Kaplan interjected.

Trump took a swipe at Kaplan earlier that day.

“I have to go back for a woman who made a false accusation about me, and I have a judge who’s extremely hostile,” Trump told reporters in Ireland. “And I’m going to go back and confront this woman. This woman is a disgrace, and it shouldn’t allowed in this country.”

‘An officer of the court’

Back in New York, Trump’s lawyer kept contradicting his client’s vow.

“I am going to rest,” Tacopina said during sidebar. “I’m telling you right now, I’m going to rest.”

Even though Tacopina followed through on that promise later that day, Carroll’s legal team said Trump’s unpredictability left them wondering whether they will need to prepare for cross-examination.

Carroll Trump 5-1

E. Jean Carroll and Donald Trump (Photos left to right: AP Photo/John Minchillo and Emily Elconin/Getty Images)

“I wonder about the idea that we will be wondering of the possibility, all weekend, that he is going to come in and testify,” Ferrara said.

“Mike, I just told you he is not,” Tacopina shot back.

Judge Kaplan apparently remained unconvinced.

“Listen, I don’t know if he is,” said Kaplan, referring to whether Trump would testify. “I trust Mr. Tacopina’s word as being what he knows as of now—”

“As an officer of the court,” Tacopina said.

“But things in life change,” the judge continued. Kaplan noted that a defendant had changed his mind about testifying in a criminal case that Ferrara prosecuted as an Assistant U.S. Attorney.

As Ferrara emphasized, defendants have “different rights that attach” in a criminal case than in a civil case. In the civil case of Carroll v. Trump, the defendant waived his right to testify and be present through his attorneys.

After the sidebar ended, Carroll’s lawyers rested the plaintiff’s case. The jury was excused for the weekend, and Trump’s attorney followed suit.

“We rest, your honor,” Tacopina said — but that didn’t settle the matter.

Judge Kaplan questioned him about that maneuver, asking whether Trump’s attorneys conveyed the legal consequences of waiving testimony in a civil case and communicated with him directly. Tacopina confirmed that he did speak to Trump, just “two minutes before I went into court this morning.” The judge left the door slightly ajar for the former president to change his mind.

“I am absolutely committed in this case, as in every case, to ensure, to the best of my ability, that every party has a full and fair opportunity to pursue or defend against a claim asserted by or against that party,” Kaplan said.

The judge then gave Trump until Sunday afternoon to ask to reopen the case “for the purpose, and the sole purpose, of testifying as a witness in this case.”

‘News reports out of the British Isles’

After offering Trump that unusual allowance, Judge Kaplan noted, obliquely, that he’d taken “precautions” because of the former president’s quoted remarks. It was the first time Kaplan had addressed Trump’s out-of-court comments directly that day.

“As I am sure, Mr. Tacopina, you are aware, and probably everybody in this courtroom is aware, there have been news reports out of the British Isles — I guess they’re still called — all day, attributing to Mr. Trump various statements with respect to his possible presence here before this trial ends,” Kaplan said. “I won’t attempt to summarize them any further or comment in any way on the substance. But I have taken the precautions I have just taken in light of those statements.”

It wasn’t the first time Kaplan had been forced to respond to Trump’s comments far outside the courthouse. The judge empaneled an anonymous jury because of the former president’s history attacking “courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters.”

Judge Kaplan has been responding to Trump’s remarks ever since.

Moments before Carroll’s first day of testimony, Trump attacked her on his platform Truth Social, calling her case a “made up SCAM” — and touching upon topics the judge barred from trial: DNA and litigation funding. Son Eric Trump posted a similar message later that day, prompting a stern warning from a livid Judge Kaplan.

“If I were in your shoes, I’d be having a conversation with your client,” Kaplan told Tacopina on April 26, adding that “there are some relevant United States statutes here and somebody on your side ought to be thinking about them.”

Days later, Trump’s campaign sent out another disparaging message about Carroll, through a link from the far-right blog Gateway Pundit. Trump’s bluster that he would confront Carroll, even as he waives his right to do so through his attorney, falls within a history of continuing to test the judge’s patience.

Trump has until Sunday at 5 p.m. ET to file a request to reopen the defense case. If he does not, the judge said, “that ship has irrevocably sailed.” Should the status quo hold, a jury will hear closing arguments on Monday.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."