Sullivan & Cromwell is helping Donald Trump erase an $83 million jury verdict for defaming E. Jean Carroll.
The petition the firm is preparing, due at the Supreme Court by month’s end, has to operate within a doctrinal framework the Court has already declined to revisit. The right-instrument is the actual-malice standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964), which requires a public-figure plaintiff to prove the defendant published a defamatory statement “with knowledge that it was false or with reckless disregard of whether it was true or false.”
The reckless-disregard branch of that standard, as the Court elaborated in St. Amant v. Thompson, 390 U.S. 727, 731 (1968), permits inference from circumstantial evidence — including the defendant’s prior statements on the same subject — that the defendant “in fact entertained serious doubts as to the truth of his publication.”
The Second Circuit’s affirmance of the Carroll verdict, Carroll v. Trump, ___ F.4th ___ (2d Cir. 2025), applied that standard to the record before it. The court found that Trump’s prior public statements about women who accused him of misconduct, including his characterization of the Access Hollywood tape as “locker room banter,” supported the inference that he was aware his denials of Carroll’s allegations were likely false. That is the judgment Sullivan & Cromwell now asks the justices to disturb.
The defense the firm has been retained to advance is that the Second Circuit got the law wrong. The theory — pressed at trial and on appeal in the parallel $5 million case, and now to be packaged for the $83 million verdict — has two pieces. First, that because Trump subjectively believed his own denials of Carroll’s allegations, a belief he testified to at trial, he could not have entertained “serious doubts” about their truth within the meaning of St. Amant. Second, that the Second Circuit’s reliance on Trump’s prior statements about other accusers to infer his awareness of falsity was an end-run around the actual-malice standard, importing a “pattern of misconduct” theory that effectively converts the constitutional standard into a strict-liability rule for public figures. The argument has scholarly purchase. First Amendment scholars have argued that the reckless-disregard standard should be narrowed to require near-certainty of subjective awareness, and the panel decision in the parallel appeal produced a dissent at the Second Circuit raising the same concern. That is a serious First Amendment argument about the boundary of protected opinion about public figures, and it deserves engagement rather than dismissal.
The audit is where the engagement meets the record. The petition in the parallel $5 million appeal had asked the Court to decide whether the Second Circuit’s affirmance of actual malice — based on inferences from Trump’s prior statements — improperly lowered the subjective-awareness requirement of Sullivan. In June, the Court denied certiorari in Trump v. Carroll, leaving the Second Circuit’s holding undisturbed. The order did not statement the denial — no Justice noted dissent from denial — which is the per curiam disposition that signals the Court did not regard the question presented as substantial enough to warrant plenary review. The same theory Sullivan & Cromwell is now preparing for the $83 million petition was available to counsel in the $5 million petition. The Court has passed on it once. A second cert petition built on the same theory, in the same posture, asking the same Court, will likely meet the same disposition.
The procedural posture of the appeal has otherwise closed against the President in recent weeks. A lower-court judge denied Trump’s bid to delay the $5.8 million judgment in the related matter, ordering the funds released to Carroll — underscoring that the underlying debt is real and the delay tactics are failing at the trial level.
The institutional posture of the firm is the more revealing story. The firm’s co-chairman, Robert Giuffra, drew what he represented to his partners as a bright line when the firm took on the President last year. Sullivan & Cromwell would handle the appeals of the felony fraud convictions and the civil-fraud judgment. It would not touch the Carroll cases. The mechanism of the breach is a containment strategy. Giuffra’s assurance was a way to secure the firm’s role in the fraud appeals without triggering a partner revolt over the sexual-assault litigation. But the client’s demands are no longer contained. Boris Epshteyn, Trump’s personal lawyer and legal coordinator, has been pressing the firm to add the Carroll matter to its portfolio. The internal result is a firm operating under the discipline of the client rather than the judgment of its partners.
The red line was drawn because of the nature of Carroll’s allegations — that Trump sexually assaulted her in a department store in the 1990s — and because big law firms rarely take on such cases for fear of reputational damage. It was a specific commitment to specific partners about specific work, not a generic policy statement. It was a promise the firm’s co-chairman made to the people whose names go on the firm’s briefs. The firm’s partners are now learning that the promise was conditional, holding only until the client’s coordinator urged the firm to expand its portfolio. Partners who have asked about the decision have been told that those who leak will be expelled. That is governance by intimidation, not governance by committee.
The structural capture of the firm is now explicit. The boundary between Sullivan & Cromwell and the Trump administration has ceased to exist. Jay Clayton, a former partner whose departure was supposed to signal a firewall, is now the President’s nominee for director of national intelligence. James McDonald, another partner, has been named the United States attorney for the Southern District of New York. When the firm’s partners are the President’s intelligence chief and the federal prosecutor for Manhattan, the firm is not merely counsel. It is an adjunct of the executive.
The partners who are now objecting are the working bar of a 150-year-old firm. They are being told to keep quiet or leave. Sullivan & Cromwell has not expanded its practice. It has surrendered its independence to become the instrument by which a President attempts to erase an $83 million verdict for defaming the woman a jury found he assaulted. The firm’s co-chairman told the partners it would not happen. He lied.