Alina Habba’s latest argument, that E. Jean Carroll failed in her duty to mitigate the damages of then-President Donald Trump’s defamatory statements, shocked one legal expert who called it a “perversion of precedent.”
Lisa Rubin appeared on MSNBC Friday evening to discuss a new filing from Habba in Manhattan's federal court.
In her letter to Judge Lewis Kaplan, Habba argues Carroll erred by speaking publicly about Trump’s denial of her claim — upheld in a civil court last year — that he sexually abused her in a department store dressing room in the 1990s.
“The harm is attributable to her own conduct in making the initial accusation (through an exclusive in a popular magazine), making numerous media appearances, frequently promoting updates in her lawsuit,” Habba writes.
“President Trump respectfully requests that this Court give the jury an instruction relating to Plaintiff’s obligation to mitigate her damages or minimize the effect of the defamation.”
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This request shocked Rubin.
“It would be perverse if somebody who has been defamed has to stay silent in order to refer damages in future litigation,” she said. “I'm stunned here by the perversion of this precedent.”
The precedent Habba relies on dates back to 1919 and appears also in a Friday night filing from Carroll’s attorney Roberta Kaplan, Rubin notes.
While Habba argues Carroll had a duty to mitigate damage, Kaplan states the precedent only protects her client's right to do so.
“Both parties know it,” Rubin said. “But only one cited it correctly.”
Former prosecutor Joyce Vance chimed in to speak not as an expert, but as a personal friend of Carroll’s.
"You don't have to be friends with her for this argument to sting all of us as women," said Vance. “This notion you're supposed to remain quiet.”
