Alina Habba's 'Perversion of Precedent' Called Out by Legal Analyst

A legal argument deployed by Alina Habba, Donald Trump's attorney, in defamation case brought against the ex-president by writer E. Jean Carroll has been condemned as a "perversion" of precedent by Lisa Rubin, a former litigator and MSNBC legal analyst.

Habba had written to Judge Lewis Kaplan, who is presiding over the case, saying that Carroll failed in her duty to minimize harm to herself from potential defamation by discussing her lawsuit in "numerous media appearances." Habba added that it was set out in precedent by a 1919 New York court ruling. Newsweek reached out to Alina Habba and Donald Trump representatives on Saturday for comment by email.

In May 2023, a New York jury found that Trump had sexually abused Carroll in the changing room of a Manhattan department store during the mid-1990s, then defamed her after she went public with the allegation. The former president was ordered to pay $5 million in damages, including $2 million for the battery claim. Trump described the verdict as "a disgrace" and part of "the greatest witch hunt of all time." He continued criticizing Carroll, leading her to file a second defamation lawsuit, this time seeking $10 million worth of compensation.

In her letter to Judge Kaplan, Habba said that Carroll failed to protect herself from potential defamation by repeatedly speaking out publicly concerning her allegations against Trump, prompting retaliation from the 2024 Republican presidential frontrunner.

Habba wrote: "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.

"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," Habba added.

Responding on MSNBC, Rubin said that Habba had misunderstood the 1919 case, which, she added, concluded that litigants in defamation cases have the right to try to avoid being defamed, but not the legal duty.

Rubin added: "Yesterday, both sides are talking about a particular New York court case from 1919, which addresses this issue squarely. Whether a victim of defamation or libel has to mitigate their own damages.

"What's shocking to me is that Alina Habba's brief, whilst it does contain a quote from that case, it misquotes the rest of the case, which stands for the proposition that a victim of defamation has the right to mitigate, but doesn't have the duty, and it is exactly as Robbie [Roberta] Kaplan and the other lawyers for E. Jean Carroll describe it in their brief," Rubin said.

The MSNBC commentator added the implication of Habba's argument is that anyone defamed in New York must remain quiet if they intend to take legal action: "It would be perverse if somebody who's been defamed has to stay silent for months in order to recover damages sometime later on in a future litigation.

"I am really stunned here by the perversion of this precedent, and Judge Kaplan was clear with both parties this week there is a single binding precedent in New York on this issue. Again, it's this case from 1919. Both parties know it, but only one cited it correctly," Rubin said.

Trump has repeatedly hit out at Judge Kaplan, whom he branded as nasty and a Trump-hating guy, during the case. Former lawyer Joe Gallina has said the Republican could "face fines and even be thrown in jail for contempt" if he continues.