He-said-she-said? After former president Donald Trump’s lawyers used that familiar, dismissive assessment to describe journalist E. Jean Carroll’s allegation that he raped her in a Bergdorf Goodman changing room nearly three decades ago, Carroll’s lawyer Michael Ferrara had this for a comeback: “There wasn’t even a he-said, because Donald Trump never looked you in the eye and denied it.”
And that, ladies and gentlemen, is how you know you are watching a civil trial.
In a criminal trial, it would be a virtually automatic mistrial if a prosecutor suggested to the jury that the accused must be guilty because, if he were innocent, he would have taken the stand and solemnly assured the jury that he did not commit the offense charged. Indeed, the rule is so well known that a prosecutor who encouraged jurors to draw a negative inference from a defendant’s refusal to testify might even face sanctions.
Not so in a civil case. In a trial under the civil law, a defendant is expected to testify. If he refrains from doing so, if he declines to provide whatever innocent explanation he has, the plaintiff may comment on it. In fact, the court customarily instructs the jury that, if a defendant has failed to testify, it may draw a negative inference — either he didn’t have a good defense to the allegations, or he was fearful of submitting whatever defense he did have to the crucible of cross-examination.
That is the state of play in the trial of Carroll’s sexual-assault (the tort of battery) and defamation case against Trump. (See my post from this morning, linking to coverage of the trial.) After two weeks of trial, attorneys for both sides summed up today. Judge Lewis Kaplan will instruct the jury on the law at 10 o’clock tomorrow morning. After that, the outcome of the case will be up to the jury of six men and three women. They will be asked to determine whether Trump is liable on Carroll’s claims and, if so, what money damages must be paid to the plaintiff.
Though Trump made a show in Ireland last week of claiming he was rushing back to the U.S. to “confront” Carroll, he had told his lawyer, Joe Tacopina, that he would not be showing up at the trial — and, it being a civil case, that was his right. (In a criminal case, the accused must be present.) Trump later confirmed for Judge Kaplan (through Tacopina) that he was declining to testify, and then let lapse a Sunday 5 p.m. deadline to change his mind.
In a vacuum, I’d say this was a perilous strategy. The jury would have wanted to hear from Trump — all juries want the accused person to look them in the eye and convince them he didn’t do the thing alleged. Plus, the jury could take Trump’s absence as disrespectful: The jurors, like the judge, Carroll, and the lawyers on the case, have had to put their busy lives on hold to serve on the trial and be present for every moment of it. Yet Trump, an accused party who has much to lose, decided to play golf in Europe instead.
Of course, neither life nor trials occur in a vacuum. We always have to ask, As opposed to what? In this instance, if Trump had attended the trial, he would have been watched intently as three different women accused him of sexual assault and as Carroll’s lawyers played the infamous Access Hollywood tape in which he bragged about his sexual aggressiveness. If he had testified, he would have been zealously cross-examined.
Trump would have tried to dismiss the tape as “locker room talk,” the tactic by which he succeeded in sloughing it off during the 2016 presidential campaign. But it wouldn’t have been as easy in this setting, where Carroll’s lawyers played the tape for the jury in the midst of testimony by a claimed victim — Natasha Stoynoff — who was emotionally wrought as she recounted for the jury that Trump actually did to her the kinds of things he talked about on the tape.
Moreover, as our Brittany Bernstein reported last week, in the videotape deposition Trump was forced to provide in the case, his strange instinct was to double down on his disturbing comments rather than dismiss them. Confronted by his observations that women allow “stars” to “grab them by the p***y,” Trump told Carroll’s chief attorney, Roberta Kaplan, “Well, if you look over the last million years, I guess that’s been largely true. Not always, but largely true. Unfortunately or fortunately.” He further acknowledged that he considered himself a “star.”
Furthermore, after making a big deal of his oft-expressed insistence that Carroll is “not my type” — always a weird point since Trump would presumably concede that it is wrong to engage in sexual assault even if the victim is one’s type — Trump proceeded to mistake Carroll for his former wife Marla Maples (who obviously was his type) when a photograph was displayed, showing him and Carroll chatting amiably at a party in the late eighties.
With these kinds of missteps in the deposition testimony, and with the wide array of matters pertinent to his credibility about which Carroll’s lawyers would have grilled him, it is understandable that Trump would opt not to testify, or even show up in the courtroom to observe. There wasn’t a good option. He may have decided the downside risks of irritating the jury were likely less costly than the risks of participating in the trial and answering questions.
In any event, that means Trump’s team is relying on what Tacopina has described as the implausible details of Carroll’s version of events, not least her inability to say when the rape supposedly happened.
The plaintiff’s team presented expert testimony about why victims of sexual abuse fail to remember such basic details — and about why they engage in behavior that others might find abnormal, such as Carroll’s continuing to shop regularly at Bergdorf Goodman even after she says she was attacked there, and her actually becoming a fan of Trump’s reality TV show, The Apprentice. It remains to be seen whether that testimony persuades the jury to overlook the peculiarities in Carroll’s account. Is it enough that she was able to present two witnesses to whom she contemporaneously reported the rape when it allegedly happened, two witnesses who claim to have been similarly victimized by Trump, and Trump’s own words on the tape?
We’ll see this week — perhaps as early as tomorrow. Bank on this, though: In highlighting Trump’s failure to come to court, take the oath, look the jury in the eye, and deny committing sexual assault, Carroll’s lawyer was pounding at what would be a paramount concern for any jury.