Trump lawyers ask judge to toss E. Jean Carroll lawsuit because it's not defamatory to say a journalist 'made up a story'

• Former President Donald Trump has filed a motion to dismiss a second lawsuit from E. Jean Carroll.
• Carroll has filed a second lawsuit against Trump, alleging defamation and battery.
• Trump's attorney argued he never defamed Carroll because he didn't disparage her professionally.

Former President Donald Trump's attorney argued in a court filing Wednesday that E. Jean Carroll's most recent lawsuit against Trump should be thrown out on the grounds that a New York law allowing her and many others to sue over sexual assault is unconstitutional, and that Trump saying she lied about the alleged rape didn't defame her because it didn't call her professionalism into question.

Trump's main argument was that the New York Adult Survivors Act — which temporarily allows people fo file sexual assault lawsuits in cases where the statute of limitations has expired — unconstitutionally deprives defendants of due process and arbitrarily allows years- or decades-old allegations to be revived.

"Notwithstanding the sympathies at play, the Adult Survivors Act is a contravention of the New York State Constitution, an invasion of due process, and a clear abuse of legislative power," the filing said.

Carroll, a former Elle magazine columnist, used the new law to sue Trump for battery last month, alleging that he raped her in a Bergdorf Goodman store 27 years ago and that he made multiple false statements about her that damaged her reputation. Trump has vehemently denied all of Carroll's allegations.

Carroll previously sued Trump in 2019, alleging that the then-president defamed her by claiming she invented the rape allegations. That lawsuit is currently under review by the DC Court of Appeals, which will hear oral arguments in January over whether Trump can be sued personally over actions he took while serving as president.

As part of Trump's motion to dismiss Carroll's most recent lawsuit, his attorney homed in on one of Trump's statements that Carroll alleged was defamatory. On October 12, 2022, on the social media platform Truth Social, Trump called Carroll's allegations "a Hoax and a lie," and a "scam," noting that she was "promoting a really crummy book."  

Trump's court filing on Wednesday argued that Trump's October 12 statement didn't qualify as defamation because it doesn't disparage Carroll's "trade, business or profession."

"Notably absent from the October 12 Statement is any language aimed at a particular skill or trait that reflects upon Plaintiff's competency as a 'writer, advice columnist, and journalist,'" the filing said.

The filing also said the October 12 statement was "at most, a general reflection upon [Carroll's] character or qualities, as it portrays her as a dishonest individual who 'made up' a story about [Trump]." 

New York law establishes four narrow categories of statements that can be considered defamatory — one of which is that the statement must have injured someone's trade, business, or profession. Trump's attorneys argued that his statements couldn't have caused that type of injury to Carroll, since he never commented directly on her writing or journalistic abilities.

Carroll, however, argued in her lawsuit that her profession as a writer and journalist depends upon her reputation, which she says Trump damaged with his defamatory statements.

Trump attorney Alina Habba told Insider in a statement on Thursday that Carroll's new lawsuit "is nothing more than a tired repeat of her first action," which alleged defamation, but was filed in 2019 before New York's Adult Survivors Act took effect and did not include that battery charge for the alleged rape. 

"She seeks to exploit the Adult Survivors Act, which was designed with the admirable goal of vindicating the rights of those who have suffered sexual abuse," Habba said. "At the end of the day, the President told the truth when he denied her claims, and we will continue to fight to protect his First Amendment rights." 

Judge Lewis Kaplan has not yet ruled on Trump's motion to dismiss the lawsuit. But at a court hearing on Wednesday, Kaplan indicated he likely would not agree to do so. When one attorney referred to their motion to dismiss the case, Kaplan responded, "I wouldn't count on that."

In response to Insider's request for comment, Carroll's attorney, Roberta Kaplan, said Carroll's team looks forward to going to trial in April 2023.

"Based on the discussion during yesterday morning's court conference, we expect that Judge Kaplan will quickly reject Donald Trump's latest attempt to delay Ms. Carroll's day in court," Kaplan said.