NRPLUS MEMBER ARTICLE I n dramatic testimony Tuesday, E. Jean Carroll related that Donald Trump raped her at an upscale Manhattan department store in the mid 1990s. She was on the witness stand during the first day of testimony at a federal civil trial in Manhattan federal court. Carroll is suing Trump for battery and defamation.
Former president Trump has denied the rape accusation. Indeed, the fiery rhetoric with which he has done so, once while he was president and again last year when he was out of office, forms the basis for the two defamation claims she has filed against him. As I will explain, only one of those claims is part of the ongoing trial, along with the rape claim.
Carroll will face cross-examination today by the former president’s lawyer, Joe Tacopina.
Carroll acknowledges that she cannot place an exact date on the attack, but maintains that it occurred at Bergdorf Goodman on Fifth Avenue on an evening between autumn 1995 and spring 1996, and that she confided immediately afterwards in two journalist friends, both of whom will testify.
Carroll’s Allegation
In answering questions by one of her attorneys, Michael Ferrara, Carroll reaffirmed the narrative outlined in her civil complaint. Asked at the start why she was in court, Carroll told the jury, “I am here because Donald Trump raped me, and when I wrote about it, he said it didn’t happen. He lied and shattered my reputation. I am here to try to get my life back.”
She says that she had met Trump in person at least once prior to the alleged attack. There is a black-and-white photograph of such an encounter, said to date from the late 80s, in which Trump is accompanied by his then-wife, the late Ivana Trump, and Carroll by her then-husband, John Johnson, who was a well-known New York television reporter at the time. More to the point, Carroll asserts that she and Trump — long known as a voracious consumer of television reporting — ran in the same media circles. She had something of a profile at the time: an advice columnist at Elle who was a frequent guest on the Today show and Good Morning America, and who for a time hosted a daily program, As E. Jean, on “America’s Talking,” a network started by Fox News founder and Trump’s longtime acquaintance, the late Roger Ailes.
Carroll does not contend that she knew Trump well, or even that he necessarily knew her name, when the alleged incident occurred. She was 52 at the time (she’s now 79); he was 49 in the time frame she describes. She relates that on the evening in question, she was leaving Bergdorf (where she was a regular customer) when she had a chance encounter with Trump, who was entering the store. She says he appeared to recognize her, put his hand up to stop her exit, and said in a friendly manner, “Hey, you’re that advice lady!” In response, she quipped, “Hey you’re that real-estate tycoon!” She says they made small talk and that she was charmed, struck in particular by Trump’s “boyish good looks.”
She says that Trump told her he was at Bergdorf to buy a present for a “girl” whom he would not identify. He consulted her on what he ought to get. After some banter about handbags and hats, Trump said he wanted to buy lingerie instead. She recounts accompanying him up the escalator to the lingerie department, which she claims was unusually empty for Bergdorf, with no sales attendant in sight.
There, she claims Trump grabbed from a counter a see-through bodysuit in lilac gray and insisted that Carroll should model it for him. She recalls playfully countering that he should try it on, and that they “teased” each other briefly in this vein. Suddenly, she says, he grabbed her by the arm and said, “Let’s put this on,” maneuvering her into a dressing room that was open and unlocked, which, Carroll concedes, was “strange” for Bergdorf.
She says she continued laughing as they entered, thinking it was just flirtatious fun. Once they were inside, though, she says Trump closed the door and overpowered her. Without getting further into the gory details, she says he raped her for two to three minutes, she fought him throughout, and finally managed to push him off her. As he lost his balance, she recalls fleeing the dressing room and running out of Bergdorf and onto Fifth Avenue. As the Trump defense has stressed, there is no surveillance-camera evidence or other physical proof in support of her account.
Two Contemporaneous Reports
Still on the street, dazed, and maniacally laughing as a nervous reaction, Carroll says she called her friend Lisa Birnbach, a journalist and correspondent on morning television. Carroll says she described the alleged rape in detail, and that Birnbach pleaded with her to go to the police. Carroll did not want to do this, opined that the incident was brief and now over, and implored Birnbach not to tell anyone.
Birnbach will testify later in the trial, corroborating Carroll’s account. She has reasoned, and Carroll appears to agree, that Carroll called her because Birnbaum had been working on an article about Trump’s Mar-a-Lago resort for New York Magazine. The piece, “Mi Casa Su Casa,” ran in the weekly’s February 12, 1996, edition, which is relevant to Carroll’s effort to put a date on the alleged attack.
In the days that followed, Carroll says she confided in a second journalist friend, New York television-news anchor Carol Martin. Carroll says Martin strongly advised her to follow her instincts and tell no one. “Forget it,” Carroll recalls her friend saying. “He has 200 lawyers. He’ll bury you.” Martin is also slated to testify, and she will back Carroll’s contemporaneous report of a sexual assault and her own advice that Carroll stay silent.
Carroll’s #MeToo Moment
Carroll did remain silent for over 20 years. She attributes this to fear and shame, in part blaming herself for accompanying Trump to buy lingerie. Her silence, she maintains, caused her significant professional angst since her advice column often put her in a position of counseling women who claimed to have been sexually harassed (and worse): She was advising them to be strong and take decisive action while refraining from doing that on her own behalf.
She recalls being moved to anger and regret when the Access Hollywood tape came out during the 2016 campaign, followed by numerous women’s reports of being subjected to various degrees of aggressive sexual conduct by Trump. Yet, she resolved to remain mum because her mother was dying and would have been upset by the uproar had she gone public. After her mother died in 2017, she says she became determined to tell the story on her own terms — not as a victim reporting to the police, but in the context of a biographical account of her unpleasant experiences with men, interspersed with her long experience as an advice columnist. This evolved into a book — What Do We Need Men For?: A Modest Proposal.
At roughly the time she began work on the book, the Harvey Weinstein scandal broke, launching the #MeToo movement. This is relevant in two ways. First, it annealed Carroll in her resolve to come forward publicly. Second, it eventually led New York State to enact a one-year reprieve from the statute of limitations for people claiming to be victims of sexual abuse (mainly women, of course) to file lawsuits. That window opened in November 2022, and Carroll immediately filed her battery lawsuit.
The Defamation Claims
By then, she was already in hotly contested litigation with Trump. Before her book came out in early July 2019, New York Magazine ran the excerpt about the then-president on June 21. Trump responded by vehemently denying the allegations and publicly castigating her — a “whack job” liar who was using him to try to sell a book — in statements published on June 21, 22, and 24. Interestingly, notwithstanding the above-referenced photograph, Trump initially insisted, “I’ve never met this woman in my life.” He later said, “I have no idea who this woman is,” though he observed that he had heard she was married to a “nice guy, Johnson — a newscaster.” In a subsequent interview, he gratuitously added “with great respect,” that “she’s not my type.” Interestingly, when he was shown the photograph at his deposition, Trump initially mistook Carroll for his second wife, Marla Maples. Upon being told it was Carroll, he indicated that the photo seemed blurry to him.
These June 2019 statements became the grist for the first lawsuit that Carroll filed against Trump, alleging defamation in New York state court. As I’ve previously detailed, the Justice Department and Trump got that case transferred to federal court in Manhattan, further moving to substitute the United States for Trump as a defendant. The government’s position (which the Biden Justice Department has continued to press) is that the then-president’s comments, however offensively phrased, were within the scope of his duties as president. This is key because this defamation claim would be dismissed under the doctrine of sovereign immunity if the United States were substituted: Congress has not consented to have the government sued for defamation. As I elaborated last week, although Judge Lewis A. Kaplan (who is presiding over the trial) ruled that Trump’s statements were not within his official duties, the Second Circuit appellate court vacated that ruling, but it then failed to fill the void with a ruling of its own. The issue has been kicking around unresolved ever since, with the Second Circuit sending it back to Kaplan last week.
Nevertheless, last year, Trump essentially repeated his comments about Carroll on his Truth Social platform. As he was out of office by then, these 2022 statements are not complicated by the sovereign-immunity issue that enmeshes the 2019 statements. Carroll promptly filed a second defamation claim, citing the Truth Social statements. Consequently, while Trump’s remarks as president are not part of the trial, the Truth Social claim is. Presumably, a jury verdict on the latter (in addition to a verdict on the rape claim) would obviate the need for a second trial on the 2019 defamation claim. That is, for all the extensive litigation over the question, it may prove unnecessary to resolve the question of whether Trump’s trashing of Carroll while he was president was within the scope of his official duties.
Additional Proof of Sexual Misconduct
Kaplan is permitting Carroll to present testimony from two other women who came forward after the Access Hollywood tape was made public. One is Jessica Leeds, who says Trump groped her on an airplane. The other is Natasha Stoynoff, a People magazine reporter who alleges that she was assaulted at Mar-a-Lago while she was doing a profile of Trump and his wife, Melania, on their first anniversary — she says he pressed himself on her, forced a kiss on her, and told her they were going to have an affair. In explaining why he was permitting this testimony, the judge wrote: “In each case, the alleged victim claims that Mr. Trump suddenly attacked her sexually. In the cases of Ms. Carroll and Ms. Stoynoff, he allegedly did so in a location after closing a door behind him, which gave him privacy. In all three cases, he allegedly did so without consent.”
Kaplan will also permit Carroll to show the jury a portion of the Access Hollywood tape, in which Trump brags about being sexually aggressive with women. (“I better use some Tic Tacs just in case I start kissing her. You know, I’m automatically attracted to beautiful — I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star they let you do it. You can do anything. . . . Grab them by the p****. You can do anything.”) As the judge points out, evidence rules generally forbid the admission of evidence intended to show that a person has a propensity to commit criminal acts, for the purpose of suggesting that he must also have committed the act alleged in the case. There is an exception, however, in civil cases in which a sexual assault is alleged.
Judge Kaplan Admonishes Trump about Obstruction
Trump is clearly trying the patience of Judge Kaplan and runs a risk not only of being held in contempt but of having the court ask the Justice Department to investigate whether he has obstructed justice.
Because this is a civil trial, the defendant is not required to be present, and Trump has not been. Carroll, the plaintiff, is not planning to call Trump as a witness for live testimony; she will rely on video portions of his pretrial deposition. Trump, however, is on the list of witnesses the defense may call, though I believe that is unlikely. In any event, given that the former president’s attendance at the proceedings would raise challenging logistical and security concerns for the court, Kaplan has been pressing his lawyer, Tacopina, about whether Trump plans to show up, and whether he intends to testify.
Tacopina has been non-committal, as one would expect: The defense could decide it would be better to present the known quantity — video portions of Trump’s pretrial deposition testimony — than risk live testimony and cross-examination. Plainly, Tacopina would rather assess how effective Carroll’s testimony has been before making a decision about having Trump take the stand. Because Kaplan is responsible for administering the proceedings, he is unhappy about being strung along, and has given Tacopina until the end of this week to tell the court definitively what Trump will do.
More vexing for Kaplan is Trump’s social-media activity.
The judge has taken pains to refrain from issuing a gag order on the former president, who, of course, is currently seeking the Republican presidential nomination to run again in 2024, and is leading in the polls. So Kaplan has directed that the parties not make statements that would incite violence or civil unrest. While Trump surely does not appreciate the not-so-veiled reference to the Capitol riot, Kaplan’s directive is not objectionable because he has forbidden only what is illegal in any event.
Since the trial began in earnest with jury selection and opening statements on Monday, Trump has been his provocative self on social media, calling the lawsuit a scam, arguing that it is being bankrolled by a Democratic political operative, and insisting that the dress that Carroll says she wore at the time of the rape should be “allowed to be part of the case.” On Wednesday, Kaplan warned Trump’s lawyers that this was “entirely inappropriate” in that Trump was not only speaking to the public but trying to influence the jury.
Why does the judge believe that? Well, Kaplan has ruled that Carroll’s legal fees are irrelevant to the case. She is represented by the law firm of Roberta Kaplan (no relation to the judge) on a contingency-fee basis (i.e., the lawyers get a percentage of the recovery if Carroll wins the case), but some of the expenses are being paid by a progressive nonprofit fund (American Future Republic) that is backed by Reid Hoffman, the billionaire LinkedIn founder and a prominent Democratic donor. Moreover, Carroll had forensic testing done on the aforementioned dress. Although this is not, shall we say, a “Monica Lewinsky’s blue dress” situation, Trump offered to provide a DNA sample. But this offer was made after the court’s deadline for disclosing evidence had passed, and while Trump was pushing for a postponement. Kaplan thus declined the offer as untimely and a stalling tactic. A test would also be of minimal value: There is no allegation that Trump left a DNA trail, and he can already argue that, despite Carroll’s efforts to uncover useful forensic proof, there is none.
Kaplan is thus angry that Trump, while being coy about whether he will actually testify before the jury, is using social media to place before the jury information that the court has already excluded from the case. When confronted by Kaplan, Tacopina said he was unaware of his client’s posts but would make an effort to stop Trump from tweeting about the case — though his capacity to control his client is, well . . . dubious. Kaplan’s retort was that he hoped Tacopina succeeded because “we’re getting into an area conceivably in which your client may or may not be tampering with a new source of potential liability — and I think you know what I mean.”
Clearly, Kaplan was suggesting that Trump was not merely courting a contempt citation but also treading close to the line of criminal obstruction, a felony that would add to the potential jeopardy the former president already faces from various criminal investigations involving the attempt to overturn the 2020 election, obstruction of the January 6 congressional proceeding, the retention of classified documents at Mar-a-Lago, misrepresentations made to the grand jury investigating the document retention, and the Manhattan DA’s indictment arising out of the hush-money arrangement with porn star Stormy Daniels.
Jean Carroll’s testimony will probably take most if not all of Thursday’s court session. The civil trial should wrap up next week.