Just over three years ago this month, the writer E. Jean Carroll won the first of two jury trials against President Donald Trump for defamation and sexual abuse, trials through which she was ultimately awarded more than $88 million in damages. Now, as first reported by CNN and confirmed by MS NOW, she is under investigation by Trump’s Justice Department.

According to CNN, the DOJ is looking into whether Carroll lied under oath when she testified, at an October 2022 deposition, that her lawyers were handling her case on contingency and that no one else was paying her legal fees, “though it was later revealed that billionaire Reid Hoffman had paid some legal fees and expenses.”

The Washington Post has since reported — and as two people familiar with the situation have told MS NOW — that Hoffman and his non-profit, America Future Republic, are the investigation’s real targets while acknowledging that prosecutors are “expected to look” at Carroll’s statements.

Whether Carroll is the focus of that investigation or collateral damage remains in dispute. But either way, a closer examination of the underlying facts and events illustrate how difficult it would be for DOJ to show that Carroll committed perjury, which requires proof — beyond a reasonable doubt — that the defendant both knowingly made a false statement and that the statement was material, meaning that it was capable of influencing the jury’s decisionmaking.

Specifically, it was not just “revealed” that Hoffman paid some of Carroll’s legal fees and expenses, but rather disclosed by Carroll’s counsel in a letter sent to Trump’s legal team in April 2023 on the eve of the first trial.

“During the course of preparing for her testimony at trial, Ms. Carroll has recollected additional information,” they wrote. “While Ms. Carroll stands by that testimony about this case being a contingency case, she now recalls that at some point her counsel secured additional funding from a nonprofit organization to offset certain expenses and legal fees.”

Carroll’s lawyer, Roberta Kaplan, provided additional details the next day in a failed attempt to quell the Trump team’s concerns. Kaplan explained that months after filing Carroll’s initial lawsuit, she and the other lawyers representing Carroll obtained the non-profit’s financial support but that Carroll herself “has never met and has never been party to any communications (written or oral) with anyone associated with that nonprofit or its financial supporters.”

Trump’s team, however, insisted that they needed new discovery and even requested a month more to prepare for trial. Ultimately, Judge Lewis Kaplan of the Southern District of New York allowed Trump’s team to depose Carroll for one additional hour but eventually concluded her testimony was not relevant to either her credibility or any issue relevant to her claims.

After Carroll won on her defamation and sexual abuse claims at that first trial, the same judge presided over a second defamation-only trial months later. The second trial concerned statements Trump made about Carroll in 2019, when he was still president. There, because the jury in the first trial concluded that virtually identical statements were defamatory, the second trial considered only whether Carroll was damaged by Trump’s 2019 statement and how she should be compensated. 

In the meantime, Trump appealed the first verdict on a number of grounds, including the exclusion of evidence relating to the litigation funding secured by Carroll’s counsel. Trump claimed the excluded evidence hurt Carroll’s credibility and exposed her bias and motive. Yet a panel of three appeals court judges affirmed Carroll’s victory, instead finding Carroll believable when she claimed that she forgot about the funding and that the evidence showed Carroll “simply was not involved” in who or what was funding her lawyers’ costs.  

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After his first appellate loss, Trump struck out again when 8 of the 10 active judges on that appeals court denied his request for a rehearing.  And Trump has fared no better in his appeal of the second, much larger Carroll verdict, in which he also raised the litigation funding issue, albeit unsuccessfully.  There too, a unanimous panel of three judges upheld the jury’s verdict, and a lopsided majority of the active judges denied his petition for rehearing last month. 

To date, no federal court has ever sided with Trump on either the alleged, knowing falsity of Carroll’s testimony or its relevance.

And now, the only place left for Trump to go is the Supreme Court. In the first of the cases tried, Trump has already petitioned for their review, but the justices have not decided whether they should even hear the case. In fact, although the justices were first supposed to discuss the first-tried Carroll case in February, that discussion has now been “rescheduled” 12 times, including this past Wednesday, the same day the DOJ’s investigation of Carroll was first reported.

In other words, Trump is facing down the increasingly-real possibility of paying E. Jean Carroll more than $88 million, before interest, with only the Supreme Court to potentially rescue him.

But in the meantime, multiple federal judges have already concluded that it was both more likely than not that E. Jean Carroll genuinely forgot about the litigation funding when she was deposed in October 2022, and that the funding itself and her testimony about it were, in any event, irrelevant to questions of her credibility, bias, and motive as well as the underlying elements of her defamation claims.

By contrast, in any criminal case, the DOJ would have to establish that her statement was knowingly false and would have been material to the jurors. 

Whatever this investigation is, it hardly seems like the beginning of a successful prosecution. 

Lisa Rubin

Lisa Rubin is MS NOW’s senior legal reporter and a former litigator.