NRPLUS MEMBER ARTICLE U nlike many on the right, I’m inclined to accept the jury’s verdict in E. Jean Carroll’s civil case against Donald Trump. As Rich and I discussed on the podcast, I don’t think the verdict is irrational. Trump apologists argue that the jury “rejected” the rape claim yet found that Trump defamed Carroll by denying he raped her. That’s a distortion of what a verdict is, and of what we can fairly surmise from this particular verdict. Moreover, it is specious to contend that because New York State is politically blue, the verdict against Trump has perforce been driven by politics, not evidence.
That said, Carroll’s new defamation allegation against Trump, filed on Monday, strikes me as an effort to extend her 15 minutes in the limelight.
A trial jury weighs whether claims have met the proof burden that applies to a case. In Carroll’s civil case against Trump, alleging the torts of battery and defamation, the standard of proof was preponderance of the evidence (i.e., more likely than not).
When a jury finds a civil defendant “not liable,” that is not a finding that he did not do the thing alleged. Rather, it is a finding that the plaintiff did not prove he did it by a preponderance of the evidence. This was not a criminal case in which a charge of rape was lodged and a jury was asked to find whether the defendant was guilty of that charge. (And even it had been, a not-guilty verdict would not necessarily mean a rape hadn’t happened, just that it hadn’t been proved beyond a reasonable doubt.)
On Carroll’s battery tort claim, the jury was given three possible theories of liability — rape (i.e., forcible intercourse), sexual abuse (forcible conduct for the aggressor’s sexual gratification but without intercourse), and forcible touching (similar to sexual abuse, the aggressor gropes or otherwise sexually touches the victim without consent). The jury was told that proof of any one of these three theories would constitute battery under New York law. It found that two of them had been proven — sexual abuse and forcible touching. That was more than enough to establish battery. The jurors also unanimously concluded that Trump had defamed Carroll — not merely by denying that he raped her, but by claiming nothing at all had happened, that he had no idea who she was, and that she was a lying “whack job.”
Far from being irrational, the verdict suggests the jury made a discriminating appraisal of the evidence. Carroll’s testimony was credible (Trump’s defense did not much shake her on cross-examination), and it was supported by two contemporary-report witnesses — including one, Lisa Birnbach, who attested that Carroll telephoned her within ten minutes of the incident at Bergdorf Goodman to describe what had happened. Plainly, this convinced the jury that something of a nonconsensual sexual nature had happened between Trump and Carroll.
Nevertheless, her evidence that the something included rape was weaker than the rest of her case. Without getting too graphic, Carroll, in what she described as her understandable duress in the moments of the assault, was not clear on the details of sexual penetration, and there was neither a claim nor forensic evidence of ejaculation. In addition, Carroll initially seemed reluctant to say she had been raped; she and Birnbach testified that, as they discussed what had just happened, it was Birnbach who first used the word rape to describe it, as she pleaded with Carroll to go to the police — which Carroll refused to do.
Furthermore, Judge Lewis Kaplan allowed Carroll’s lawyers to present to the jury two other witnesses who claim that Trump assaulted them, as well as Trump’s statements on the infamous Access Hollywood tape. The witnesses described sexual abuse and forcible touching, but not rape. On the tape, Trump appears to brag about sexual abuse and forcible touching, but makes no admissions about rape.
Consequently, the jury was comfortable concluding that the incident between Trump and Carroll included sexual abuse and forcible touching, but the panel was unwilling to find that Carroll had proved rape — not that it didn’t happen (though some jurors may have thought it didn’t happen), but that Carroll’s evidence was insufficient. The jurors may have believed that this conclusion was not of great significance, since the tort of battery could be established (and, they found, was established) without a finding of rape.
Now, let’s discuss the jury pool. Although the case was tried in Manhattan, this was not just a Manhattan jury. Unlike New York County District Attorney Alvin Bragg’s state criminal case against Trump, which will have an exclusively Manhattanite jury if it ever gets to trial, Carroll’s was a federal civil case in the Southern District of New York. The district’s main courthouse is in lower Manhattan, but the jury pool is drawn from the Bronx, Westchester, Rockland, and Putnam Counties. (Although the SDNY also includes Dutchess, Orange, and Sullivan Counties, those jurors generally serve in the SDNY’s White Plains courthouse or in the rare trials held in its Poughkeepsie courthouse, not in Manhattan.)
We are National Review people, so we are more politically obsessed than the average American. Mindful of that, we must resist the assumption that, because jurors are apt to disagree with a politician or even despise that politician, they are therefore likely to convict or find the person liable in the absence of strong evidence. Jury selection does a good job of weeding out people who are wired that way. The vast majority of people are not — they simply don’t care that much about politics. (Remember: While about 5 million Americans watch cable news on a newsy night, 325 million others find something else to do.)
I tried and supervised criminal cases in the SDNY for two decades. Though things were not as politically polarized when I left 20 years ago as they are now, my experience was that jurors were extraordinarily fair: Verdicts — including verdicts in public-corruption cases — were evidence-driven, not political. Even if we assume for argument’s sake that jurors will act politically because Trump is so polarizing, it’s worth remembering that although he lost the state by 23 points in 2020, more than 3.25 million New Yorkers voted for him — more than voted for him in many states that he won. He lost overwhelmingly in Manhattan and the Bronx, and more decisively than I’d have expected in Westchester, but he did better further from the city, narrowly losing Rockland and narrowly winning Putnam.
The anonymous nine-person jury in the Carroll–Trump case appears to have been drawn mostly from the Bronx and Manhattan but had at least a couple of people from Westchester and Rockland. Even if we assume that the jurors skewed heavily Democratic, there is no indication that they were especially political. More to the point, they had to be unanimous to render their verdict. On that score, they gave Trump the benefit of the doubt on the rape allegation, and it’s hard to believe they’d have done that if they’d been blinded by partisanship and Trump derangement.
As Rich observed on our podcast and on The Editors, at the CNN town-hall appearance just days after the verdict, Trump gave a spirited defense of himself that might even be described as “compelling.” The problem, however, is that Trump was unwilling to show up at the trial, look the jury in the eye, and tell that same story under oath, subject to cross-examination.
That’s what a jury wants in every case where a serious allegation is made. All the more so in a civil case where the defendant is expected to testify and is well aware that, if he opts not to testify, the judge will instruct the jury that it may draw a negative inference (i.e., the defendant did not have a good counter to the accusation, or at least not one he was willing to be aggressively questioned about). For that reason, the CNN appearance underscores why Trump was found liable more than it suggests that he has a convincing defense. He was the only witness, besides Carroll, the jurors wanted to hear from. How could they help but wonder, given how determined he is to talk nonstop about Carroll’s allegation in press conferences and on social media, why he wouldn’t man up and come talk to them about it?
Carroll’s new claim is that Trump’s defense of himself on CNN, which included the now-familiar verbal shots at her credibility, amounted to a new episode of defamation (apparently to be larded atop the still-outstanding defamation allegation based on Trump’s denials while he was president in 2019 — the claim that was not before the jury in Judge Kaplan’s courtroom because of unresolved legal questions about presidential immunity). Although Carroll did not propose a damage amount in her initial complaints, she now seeks $10 million in damages.
This is just grandstanding. Trump did not say anything about Carroll in the CNN town hall that he hadn’t already said a million times. That doesn’t make it right, but unless she can show damages she has no case. A jury just awarded her $5 million based on the prior defamation plus the sexual abuse, so the notion that a new defamation — after the jury essentially found that Trump’s denials lacked credibility — is somehow worth double what she’s already been awarded is far-fetched.
Let’s face it: The reality is that, far from being damaged, Carroll is only being helped by Trump’s continuing to call more attention to an incident about which she wrote a book that is still being sold. She had every right to hold Trump accountable and defend her reputation. But she’s done that already. At this point, publicity due to Trump’s diatribes helps her journalistic career, her book sales, and her media opportunities. Trump is giving her a platform beyond anything she ever achieved, or could have achieved, on her own.
I doubt Carroll’s new defamation case, and the unresolved remnants of her old one, will get much traction. Politically speaking, as long as Trump runs for president, the Manhattan federal jury’s verdict means she’ll be welcome on various cable-news shows — her book will continue being hyped and maybe she’ll even write another one.
The real significance of Carroll’s latest lawsuit goes to the point I’ve made a number of times: We haven’t seen the bottom of Donald Trump’s legal problems, nor will we, because he is mercurial and erratic, which guarantees that he will continue digging himself new holes. President Biden and Democrats are betting that Republicans will be foolish enough to nominate Trump despite the uncertainty of whether he will face additional criminal and civil accusations in court. They’re betting that once he’s the sure GOP candidate in the 2024 general election, this uncertainty will evolve into new legal jeopardy — a good bet given that it would mainly be up to elected and appointed Democratic prosecutors to decide whether to file lawsuits. The Democratic calculation is that this drama would remind independents and Trump-resistant Republicans — as if they needed reminding — of why they resolved never to vote for Trump again.
If you want a lesson from Donald Trump’s continuing E. Jean Carroll saga, there’s your lesson.