The Supremes’ Predictable Refusal to Review the Civil Sexual Assault Verdict Against Trump

On this much anticipated and duly momentous SCOTUS day, let me begin by congratulating Rich on the demise of Humphrey’s Executor, a Supreme Court ruling he has decried so many times on our podcast and on The Editors. You’d almost need to go to the traditional rules of baseball to find something that more tormented our leader than that nearly century-old pillar of the administrative state!

Beyond that, and my piqued interest in the Court’s resolution of the tension between allowing President Trump to fire FTC Commissioner Rebecca Slaughter but not Federal Reserve Board member Lisa Cook, I’m going to do what any sensible legal analyst does: read what the justices said and then read what the great Dan McLaughlin says about what the justices said before further weighing in.

While Dan scrivens on what the Court wrote, I’ll take a few moments to discuss what it declined to write about — the E. Jean Carroll case (or, at least, one of them). As Brittany reports, the justices today denied certiorari (meaning they will not review) the president’s appeal of the trial and verdict in which a jury awarded the journalist $5 million upon finding that he sexually assaulted her sometime in the mid-Nineties and then defamed her soon after his first term as president. (A second jury found that he also defamed her during and — once again — after his first term, and awarded her an astounding $83.3 million, but that was not the case before the Court.)

We extensively covered the Carroll v. Trump trials — federal civil matters in Manhattan federal court (the Southern District of New York). The crux of Trump’s appeal in the case concerning the key question — namely, whether he sexually abused Carroll in a dressing room at the tony Fifth Avenue department store Bergdorf Goodman — centered on the controversial issue of so-called similar-act proof. This is evidence of crimes, civil wrongs, or other bad acts other than the bad acts alleged in the civil complaint or criminal indictment at issue.

To find someone civilly liable or criminally guilty, a jury must find that the condemnable conduct at issue has itself been proved under the applicable standard (preponderance of the evidence in civil cases, beyond a reasonable doubt in criminal cases). The law, then, has always understandably worried about the admission of similar-act evidence; if it is powerful enough, it could cause the jury to find liability or guilt, not because the evidence of the alleged act is compelling, but because the evidence of the similar acts not formally alleged suggests that the defendant has a propensity to engage in bad behavior.

On one hand, we don’t want to categorically exclude evidence that might be relevant to show that the formally alleged conduct was not the result of an accident or mistake. Still, on the other hand, we don’t want people to be held liable or convicted on weak evidence because they seem like the type who habitually engages in that sort of misconduct.

To be more concrete, in Carroll’s case, her sexual-assault allegation was a quarter-century old and uncorroborated by any physical or eyewitness evidence. There was testimony that she’d given fairly contemporaneous accounts of it to a couple of friends, but there was no forensic support, she never went to the police, and she wasn’t even sure of exactly what year it had happened. (She first described it in a memoir published during Trump’s first term, decades after the alleged fact.)

To try to shore up a case that relied almost entirely on her own testimony, Carroll called as witnesses two other women who claimed they had been sexually assaulted by Trump (though not to the extreme alleged by Carroll, who claimed to have been raped, a claim the jury did not find proved, though it did appear to find a serious assault involving at least digital penetration). The two other alleged victims’ testimony was emotional and compelling, especially on the heels of another instance of similar-act evidence admitted by Judge Lewis Kaplan (a Clinton appointee): the infamous Access Hollywood video, in which Trump was recorded bragging about being sexually aggressive with women.

In many contexts, a court would not admit similar-act evidence if it seemed powerful to the point of overwhelming weaker proof of the formal allegation in the case. That was the point of Trump’s counsel: The jury could find him liable, even if it wasn’t convinced of Carroll’s scantly supported account, because it was inflamed by the similar act evidence, believing Trump had a propensity to engage in sexual abuse.

Nevertheless, as I pointed out in 2023 while the case was underway, important changes were made in federal law in 1994. Rule 404(b), the rule of evidence that generally controls similar-act evidence (and so-called character evidence), was supplemented by a series of rules that eased the way for admitting such evidence in sexual abuse cases. The 1994 changes included Rule 415, which states in pertinent part:

In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. [Emphasis added.]

Now, one can question the wisdom of this rule. To repeat what I posited three years ago, I am skeptical of the premise that what is essentially recidivism evidence is somehow more relevant in sex crimes than other crimes. To be sure, victims of sexual abuse have a tendency not to come forward for many years (which weakens their cases even if their allegations are true); but in my experience (including 20 years as a prosecutor), bad actors recidivate in all manner of criminal activity. I doubt that the rules should be different in sex cases than in other cases involving serious and violent crime. (I’d let it all in or keep it all out, not pick and choose depending on which crimes by which people were in the media spotlight at any given moment.)

But that’s a policy question. The Supreme Court doesn’t do policy. So far as I’ve been able to find — and while I don’t pretend to have conducted exhaustive research as I would if I were briefing the issue for a judge, I do follow this stuff — there have not been any federal court rulings that Rule 415 is unconstitutional. There was virtually no chance that the Court was going to agree to review Trump’s case under those circumstances.

There’s another reason for this. As I’ve observed a number of times, Trump’s biggest legal error in the case was to decline to show up and testify. His counsel presented no defense. That left the judge to instruct the jury that it could draw a negative inference against him. (In a criminal case, as the Fifth Amendment has been construed, the jury is instructed that it may not draw a negative inference from a defendant’s choice not to testify. In a civil case, the jury is invited to conclude that if the defendant had an innocent explanation, he would have provided it in testimony.)

Undoubtedly, Trump’s defense was hurt by the similar-act evidence. It was hurt even more, however, by his willful failure to take the stand and deny under oath that he’d assaulted the victims. Given these circumstances, it was entirely predictable that the Supreme Court would decline to review the case.