Trump is caught in such a legal maelstrom that E. Jean Carroll’s lawsuit has largely flown under the radar.
Trump is caught in such a legal maelstrom that E. Jean Carroll’s lawsuit has largely flown under the radar.
I n any other situation, it would be impossible to explain how we had spent so little time looking at the imminent rape trial of a former president of the United States. Here, however, Donald Trump is caught in such a maelstrom, much of it of his own making, that the civil lawsuit accusing him of sexual assault — one of two closely related suits brought by former Elle columnist E. Jean Carroll — has largely flown under the radar.
That is about to change. The case is going to trial in federal court just ten days from now, on Monday, April 24.
This week, Judge Lewis A. Kaplan, of the Southern District of New York in Manhattan, denied a motion by Trump’s lawyers to delay the trial for a month and further ordered an anonymous jury. Kaplan is a superb, no-nonsense judge, appointed to the bench by President Clinton in 1994.
He concluded that there was no point postponing the trial, notwithstanding the former president’s recent indictment in Manhattan, because publicity is a constant with Trump (who gives as good as he gets). The best assurance of a fair trial is for the court to conduct a searching inquiry of prospective jurors’ biases, rather than to delay in hopes of a quieter time that may never come. Anonymous juries, moreover, have become a staple of trials involving infamous events and lightning-rod figures; anonymity shields jurors from media and partisan harassment, thus making it more likely that people will be willing to serve as jurors in tough cases.
Why are we just beginning to focus on this imminent trial? Because there is some quirky procedural history, which I confess got me confused. In cataloguing Trump’s tribulations a few days back, I observed in passing that the lone sliver of good news for him was that the trial of Carroll’s defamation suit against him had been postponed. Turns out that was only half right — and not the important half. Let me recap more accurately.
In 2019, while Trump was president, Carroll published a memoir in which she accused him of raping her in 1996, in a dressing room at Bergdorf Goodman, the upscale Fifth Avenue department store in Manhattan. Trump vigorously denied the accusation, claiming he had “never met this person in my life,” calling her a “whack job” liar who was just trying to sell a book, and — of course, Trump being Trump — adding “she’s not my type.” Regardless of whether a sexual assault happened, Trump’s claim not to have met Carroll was untrue: There is a decades-old photo showing the two of them (along with others, including Trump’s late first wife, Ivana) in conversation at a party. As for not being his type, when shown the photo at a deposition, Trump mistook Carroll for his second wife, Marla Maples.
In autumn 2019, Carroll sued Trump for defamation. While the gravamen of such a claim is damage to one’s reputation caused by false statements, that could not be assessed absent an examination of whether Trump really did rape Carroll, so the trial was sure to be salacious. But would there be a trial?
The Trump administration claimed that, however obnoxiously Trump may have framed his denials, they were within the broad ambit of what the courts have deemed the official duties of the president. Therefore, the argument went, the defendant should not be Trump in his personal capacity, but the United States, acting through its government. This was crucial because under the doctrine of sovereign immunity, the United States must consent to be sued, and defamation is not one of the tortious acts for which consent has been given. That is, if the United States is substituted for Trump as a defendant, Carroll’s defamation claim must be dismissed.
The Justice Department defended Trump’s position when he first asserted it, and has continued to do so under the Biden administration. In October 2020, Judge Kaplan rejected the government’s motion to substitute the United States as a defendant. That ruling was then appealed. Last year, the Second Circuit declined to decide the question. Instead, a three-judge panel sought input from the District of Columbia Court of Appeals on Washington’s respondeat superior doctrine, which controls when an employer should be liable for the actions (including the statements) of an employee. Yesterday (April 13), that eight-judge tribunal punted the case back to the Second Circuit, essentially saying that the question was too fact-intensive to be decided without a fully developed record.
It is not clear what the Second Circuit will do with this hot potato, or when. This drawn-out litigation is why the trial of the defamation claim has been delayed indefinitely.
The substitution issue may never have to be resolved, though. That is because, in the interim, the State of New York enacted a law called the Adult Survivors Act, a nod to the so-called Me Too movement. Under the ASA, effective last November 24, claimants were given a one-year reprieve to file sexual-assault claims that would otherwise be time barred under the statute of limitations. As soon as the ASA window opened, Carroll filed a civil lawsuit against Trump for sexual battery, alleging she was groped and raped, and seeking damages for pain and suffering, psychological harms, loss of dignity, and reputational damage.
The rape lawsuit was joined with the defamation lawsuit before Judge Kaplan. But obviously, the substitution issue that has kept the defamation case in limbo has no bearing on the rape claim. Consequently, Judge Kaplan decided to forge ahead with trial of the rape case; after all, it would have been central to the defamation case, and the verdict in the rape trial could well obviate the need to proceed with the defamation case, or to resolve the knotty substitution issue.
It goes without saying that Carroll is the most essential witness in the trial that will begin a week from Monday. It is hard to gauge what impression she will make on a jury; some of her public appearances have been odd. As I’ve previously noted, however, Kaplan has ruled that her lawyers will be permitted to elicit testimony from two other women who claim Trump similarly abused them. She will also be allowed to show the jury an excerpt from the infamous Access Hollywood tape in which Trump bragged about being sexually aggressive.
Trump was extensively deposed in the pretrial proceedings. Because it’s a civil case, he is not required to be present at the trial, though Kaplan has directed his lawyers to let the court know by next Thursday how much, if any, of the proceedings he plans to attend. Carroll could subpoena him for testimony, but she may well content herself with excerpts from the deposition. Trump could testify on his own behalf in the defense case, but that is highly doubtful, as anything he said could be used against him in other cases; and if, because of that concern, he were to assert his Fifth Amendment privilege in answer to any questions, that would hurt him with the jury. I would be surprised if he comes to court for any part of the trial.
A minor controversy arose this week when Trump’s lawyers alerted Kaplan of their discovery that Carroll is receiving financial support for her suits from Reid Hoffman, the billionaire co-founder of LinkedIn who is a zealous Trump detractor. The Trump team asked for a continuance in order to conduct an investigation, arguing that Carroll has fabricated her story in order to advance an anti-Trump political agenda. Kaplan denied the request to delay the trial but indicated he would give Trump’s attorneys some latitude to explore the funding issue to the extent it may be relevant.
Last week, the pressing question was how former president Trump’s indictment by Manhattan District Attorney Alvin Bragg would affect the contest for the 2024 Republican presidential nomination, in which Trump is currently topping the polls. As I said at the time, it doesn’t make sense to assess the impact as if Bragg’s case were the only case. There are several cases already filed. (Note, for example, that just yesterday, Trump had to give hours of deposition testimony in New York Attorney General Letitia James’s massive civil business-fraud lawsuit against him.) It is virtually certain that more cases are coming.
The imminent rape trial underscores that Trump’s legal peril is unprecedented, unpredictable, and uncontainable.