As testimony kicked off in E. Jean Carroll’s second defamation trial Wednesday, we witnessed a number of heated exchanges between Alina Habba, the attorney for Donald Trump, and the presiding judge, Lewis Kaplan. Trump himself engaged with the judge in an intense back-and-forth right after the jurors left the courtroom for their lunch break:
There is no “kindness” standard in the law when considering a trial continuance.
Kaplan: “Mr. Trump has the right to be present here. That right can be forfeited and it can be forfeited if he is disruptive and if he disregards court orders. Mr. Trump, I hope I don’t have to consider excluding you from the trial, I understand you are very eager for me to do that.”
Trump: “I would love it, I would love it” — (putting both hands in the air, shaking them).
Kaplan: “I know you would because you just can’t control yourself in this circumstance, you just can’t.”
Trump: “And neither can you.”
Let’s be clear: Courtroom 21B in the Daniel Patrick Moynihan United States Courthouse in downtown New York is Judge Kaplan’s domain, over which he exercises control. It is certainly not Trump’s playground upon which Trump can be the big bully trying to intimidate E. Jean Carroll or where Trump can try to play fast and loose with the rules of decorum.
Consider this exchange, wherein Kaplan admonished Habba Wednesday morning:
Alina Habba: “My client and I would like to reiterate that [Carroll] can sit here every day and she did not have death in her family and it is insanely prejudicial. … I am asking your honor to have the kindness to let my client be with his family and not miss trial…”
Judge Kaplan: “The right he has according to the Supreme Court is to be present in person or by counsel the application is denied…..I SAID SIT DOWN.”
Alina Habba: “I don’t like to be spoken like that way. I will not speak to Ms. Kaplan like that. … I will not speak to you like that.”
Judge Kaplan: “IT IS DENIED. SIT DOWN!”
In avoidance of confusion, it is not “insanely prejudicial,” either legally or otherwise, to deny Trump a trial continuance to be with his family following his mother-in-law’s death. Kaplan clearly considered any appellate issues, as well as any “kindness” issues, when ruling that Trump’s latest request would be denied as evidenced by Kaplan’s recitation into the record as to what the legal standard is for Trump’s attendance in court. And in further avoidance of confusion, there is no “kindness” standard in the law when considering a trial continuance.
Furthermore, Kaplan entered an order earlier in the week on Sunday wherein he denied yet another of Trump’s prior requests for a continuance. JUST IN: Judge Kaplan in the @ejeancarroll’s defamation trial against Trump rules that IF Trump testifies, he’ll allow him to do so on Monday, January 22nd. pic.twitter.com/Hg7Gmk2EeI Kaplan detailed in his memorandum and order that three days after his mother-in-law’s death, Trump’s lawyers advised the court that he would be attending the trial, the trial date was scheduled seven months ago, etc. Kaplan then aptly in a footnote said that Trump had declared on his campaign website that he was planning to attend a campaign event in New Hampshire during the trial … which Trump attended … during the trial — you know, the trial that he was trying to continue ostensibly because of the occasion of his mother-in-law’s death. In short, Kaplan got it right when he told Trump that he could choose to attend “the funeral, the trial or both.” But Kaplan wasn’t going to be humoring Trump’s calendar whims to inconvenience the court. Trump does have the right to be present either in person or by counsel — but he does not have the right to stop the proceedings so everyone can accommodate his schedule. It is within Kaplan’s discretion to control the pace and flow of the trial, including, within reason, the order and number of witnesses and the actual timing of the trial. Control of the courtroom is not Kaplan “picking a side.” Rather, Kaplan controlling his courtroom is him doing a service for those who are present: from the litigants to the lawyers, the court staff and the witnesses and, most importantly, the jurors, who are simply there doing their civic duty. Allowing Habba and Trump to grandstand and waste time is a disservice to the jurors, because then their bad conduct becomes the focus of the trial versus the critical, substantive issues that the jurors are there to decide. Trump acting like a petulant child while seated at a defense table and Habba arguing over objections with the judge denigrates the entire proceeding. I would add that Habba’s trial skills incompetence is also causing unnecessary disruptions. As she appears not to know how to defend her client or attack Carroll’s case, Habba creates the need for objections by opposing counsel, as well as even the judge, to protect the record for purposes of appeal. She also creates several delays as issues that are usually handled with aplomb and skill by more experienced trial lawyers have to be addressed either at sidebar or outside the presence of the jury. All of this results in a prolonged and wholly unnecessary trial experience for jurors who have been instructed to remain anonymous out of concerns for their physical safety. This may be a civil defamation case, but it’s premised on E. Jean Carroll having been sexually abused by the former president of the United States, who then defamed her and lied about it occurring. Expect to see more firm and strict handling of Habba and Trump by Kaplan, which could include holding Trump in contempt of court and having him forcibly removed from the courtroom. After all, Rule 43(c)(1)(C), of the Federal Rules of Criminal Procedure, allows for Kaplan to order Trump removed from the courtroom for his disruptive behavior.
Katie S. Phang
Katie S. Phang is the host of "The Katie Phang Show," which airs Saturdays at 12 p.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues. 
