The many legal perils amassing against former President Trump have a way of blurring together at this point. But the civil trial of the writer E. Jean Carroll’s lawsuit for assault and defamation, which began Tuesday in New York, is about to stand out dramatically from the pack.
That’s because the law, the evidence and the personalities involved portend a lopsided and relatively brief trial that will portray Trump vividly as a liar, bully and sexual predator.
And we can probably add “coward” to that because Trump decided not to even show up Tuesday to face Carroll’s serious allegations. It’s a calculation that is likely to provoke resentment and contempt from the jury.
Not that the jurors, who were selected Tuesday, will need any additional reasons to hold Trump accountable. Carroll’s evidence will likely be more than enough, especially considering the poverty of Trump’s defense.
We can expect the case to feature Trump’s own words in his deposition and elsewhere, all of which are admissible under the rules of evidence. That could include such gems as Trump’s calling Carroll “a whack job” he had “never met” and mistaking the writer for his ex-wife Marla Maples when he was shown a photograph of her.
The dramatic centerpiece will be Carroll’s own account of the violent three minutes during which she says Trump raped her in the dressing room of a department store. Two witnesses who heard her harrowing story soon afterward are expected to rebut Trump’s public accusation that Carroll is making it all up.
It gets even worse for the former president. Under a provision of the federal evidence code known as Rule 415, the court may admit evidence that the defendant “committed any other sexual assault.” It’s a rule particular to sexual assault trials; evidence of past crimes is not usually allowed in court so readily. And while a jury is not supposed to draw on such evidence to conclude that “if he did it before, he must have done it this time,” it’s an inference that’s hard to avoid.
Under 415, U.S. District Judge Lewis Kaplan has ruled that Carroll’s team may present the testimony of two other alleged Trump victims, Jessica Leeds and Natasha Stoynoff, who say Trump assaulted them on an airplane and at Mar-a-Lago, respectively. The jury is also expected to hear the infamous “Access Hollywood” tape in which Trump bragged about grabbing women’s genitals.
There will be a few other witnesses, but this is unlikely to be a long trial. Carroll’s case will probably take about a week to present.
How will Trump answer this damning evidence? He gave the court and Carroll a list of exactly two witnesses — an expert to rebut one of Carroll’s witnesses and himself.
For reasons I’ve detailed before, it’s highly improbable that Trump will take the stand. Carroll’s formidable lawyer, Roberta Kaplan, would have a field day exposing him as an inveterate liar and singularly unreliable witness. The asymmetrical rules of evidence prohibit Trump from using his deposition or his other out-of-court statements in his own defense; he can only testify to that end.
Trump’s defense has other problems. His lawyer, Joe Tacopina, is a blustery brawler and a poor choice given the charges. Moreover, Tacopina has already provoked the ire of the no-nonsense trial judge with stunts designed to get around the rules, including a recent “motion for clarification” regarding Stoynoff’s expected testimony. Carroll’s attorney, by contrast, has a commanding courtroom presence and special expertise in representing victims of sexual assault.
And because this is a civil trial, Carroll’s charges need only be proven by “a preponderance of the evidence,” not the tougher criminal standard of “beyond a reasonable doubt.”
Recent months have made the once-Teflon Trump look newly vulnerable on many fronts. I expect the Carroll case to move quickly from allegations against Trump to adjudication, a milestone on his long road to accountability.
Harry Litman is the host of the “Talking Feds” podcast. @harrylitman
