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Judge refuses to tell jury in Trump civil rape trial that former president is 'excused'

The judge said the court does not accept Trump’s counsel’s “claims concerning alleged burdens on the courthouse or the City” if the former president were to testify at the trial.
Image: Former President Donald Trump attends an event at the Mar-a-Lago Club on April 4, 2023 in West Palm Beach, Fla.
A lawyer for former President Donald Trump asked the judge to provide special instructions to the jury about Trump's absence from court.Joe Raedle / Getty Images

The federal judge in the civil rape trial of former President Donald Trump said that his request for special jury instructions in the case is “premature” in a filing Thursday.

U.S. District Judge Lewis Kaplan, who is presiding over the trial in Manhattan stemming from writer E. Jean Carroll’s lawsuit, responded a day after Trump’s lawyer sent him a letter indicating that Trump might take the witness stand in the trial but saying would be too difficult for him to attend the entire trial for logistical reasons tied to his former office.

In his letter Wednesday, the lawyer, Joe Tacopina, asked Kaplan to instruct jurors: “While no litigant is required to appear at a civil trial, the absence of the defendant in this matter, by design, avoids the logistical burdens that his presence, as the former president, would cause the courthouse and New York City. Accordingly, his presence is excused unless and until he is called by either party to testify.”

Kaplan responded that the court does not accept Trump’s counsel’s “claims concerning alleged burdens on the courthouse or the City” if Trump were to testify. He noted that Trump is under no legal obligation to be present or to testify and that Carroll’s counsel has signaled that she was not planning to call Trump as a witness.

Kaplan also cited Trump’s coming travel to a campaign event in New Hampshire on the third day of the scheduled trial while pointing out that he is entitled by law as a former president to have Secret Service protection and that additional security measures can be provided, as well.

“If the Secret Service can protect him at that event, certainly the Secret Service, the Marshals Service, and the City of New York can see to his security in this very secure federal courthouse,” Kaplan wrote.

Kaplan also noted that Trump was notified of the April 25 start date on or about Feb. 7, giving him “quite ample time within which to make whatever logistical arrangements should be made for his attendance.” He said it’s “quite a bit more time” than Trump was given ahead of his recent historic indictment by a Manhattan grand jury in a case involving hush money payments made during his 2016 presidential campaign.

Kaplan concluded that Trump’s request for special jury instructions is “premature.”

“Mr. Trump is free to attend, to testify, or both. He is free also to do none of those things,” Kaplan wrote. “Should he elect not to appear or testify, his counsel may renew the request.”

“In the meantime, there shall be no reference by counsel for Mr. Trump in the presence of the jury panel or the trial jury to Mr. Trump’s alleged desire to testify or to the burdens that any absence on his part allegedly might spare, or might have spared, the Court or the City of New York,” Kaplan added.

In a letter to Kaplan later Thursday, Tacopina said that whether Trump appears or not will likely be a game-time decision.

"Because the decision of the defendant, who is not required to appear as a civil litigant, will be made during the course of the trial, we are not yet in a position to advise the Court in this regard," Tacopina wrote. "However, we will inform the Court as soon as a decision is reached, particularly in light of the logistical concerns that will need to be addressed in coordination with the Secret Service, the Marshals Service, and the City of New York."

Tacopina did not immediately respond to a request for comment.

Carroll’s lawsuit alleges that Trump raped her at a Manhattan department store in the mid-1990s, which Trump has repeatedly denied. Trump, who is on the defense witness list, sat for a videotaped deposition in October over Carroll’s claims.

Trump repeatedly insulted Carroll during his deposition, calling her a “whack job” who’s “not my type.” He also mistook a picture of Carroll from the 1990s as being a photo of his former wife Marla Maples, according to deposition excerpts that were unsealed in January.