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National Review
National Review
27 Jan 2024
Andrew C. McCarthy


NextImg:The Corner: On the Staggering $83.3 Million Carroll II Verdict against Trump

The nine-person federal jury’s $83.3 million damages verdict against Donald Trump is, in a word, staggering.

Keep in mind, as I laid out in a lengthy outline of what this second E. Jean Carroll trial was about and how the first one bore on it, that this case was only about defamation damages. That is, in the first trial, the jury had to consider whether Trump committed sexual abuse, as well as whether he defamed her. Of course, it’s a civil case, but think about it: The first jury found that the former president was liable for what would be a heinous offense in the criminal context; yet, in making that finding, plus concluding defamation had occurred, the jury awarded just $5 million.

Flash forward to today. Sexual assault was not even in the case as a cause of action. These were just two defamation claims, as to which Trump was not permitted to mount a defense because Judge Lewis Kaplan had ruled that the liability issues from the first trial could not be relitigated. Still, the second jury awarded $83.3 million — over 16 times more than the first verdict.

As an old trial lawyer, it seems to me that damages-only trials are dangerous for defendants. There is something cathartic about finding another human being guilty of a crime or liable for a serious civil tort. When jurors make such a finding, they naturally feel like they have struck a blow. So does the judge. This exercise in condemnation often has a depressing effect on sentencing (in the criminal context) and money damages (in the civil context).

In a damages-only trial, jurors don’t get to strike that blow. They don’t wrestle with core issues of guilt or liability. If they are offended by what they’ve heard, the only way they can communicate condemnation is by hammering the defendant financially.

Clearly, that’s what happened to Trump.

Beyond that, the obvious message here is that Trump needs to stop talking about E. Jean Carroll. He has done more to draw attention to her, certainly since the first trial, than she could ever have hoped to draw on her own. I don’t think she’d be much of a political issue if he had simply stopped talking about her once the first trial was over. And in connection with the second trial, since she only asked, at least initially, for $10 million, one gets the sense that a quiet settlement might have been possible.

Instead, Trump couldn’t help himself: He just can’t stop talking about her. With two jury verdicts against him now, the case is a political liability — especially for a guy who needs all the help he can get with women voters. Every time he repeats his Carroll diatribe, it opens the possibility that she will file yet another lawsuit; and with the judge already having ruled that he is barred from relitigating the underlying issues of sexual assault and defamation, Trump stands to lose any new case, which would result in having to pay more millions of dollars.

At this point, Trump and his camp should say nothing more than that he has made his feelings about the matter well known and that he will vigorously pursue the appeal.

That appeal is not frivolous. Judge Kaplan essentially ruled that he could not defend himself. In a damages trial, the most important fact in the case was whether he actually sexually assaulted her — a claim for which the evidence at the first trial was underwhelming to say the least: just Carroll’s testimony, over a quarter century after the alleged incident, along with a couple of contemporaneous reports that friends of hers say she made to them; there is no contemporaneous police report, no eyewitnesses, no surveillance tapes, and no corroborating forensic evidence. Trump, however, was not permitted to raise these weighty matters.

Of course, it cannot be gainsaid that Trump demurred only after Kaplan gave him every opportunity to testify in the first trial. That said, from a fair-trial perspective, it was still risky for Kaplan to bar Trump from testifying in the second trial about the alleged assault, which he vehemently denies. What would have been the harm in erring on the side of fairness? Had Kaplan allowed Trump to testify fully and present a robust defense, the jury might have rejected his testimony. Even if it had credited Trump and awarded Carroll minimal or no money damages, that would not have disturbed the jury’s verdict in the first trial: Carroll would still have her vindication and her $5 million in damages. But it would have given Trump a meaningful opportunity to mitigate the damages in the second trial; it would have forced the jury to deal with the all-important preliminary question of whether he did it before they decided how much to punish him for it.

One last point. This is just the beginning of Trump’s dance card. Any second, we could get the damages ruling from Judge Arthur Engoron in New York attorney general Letitia James’s civil fraud case against Trump. The judge, an elected progressive Democrat who found Trump liable even before the trial started, has been a rubber stamp for James from the start. At the conclusion of the trial, James upped her “disgorgement” damages to an astronomical $370 million, $120 million more than she was initially seeking. Anyone doubt that, in this bench trial, Engoron is going to give James a verdict at or near what she has sought, despite the lack of proof that there were any actual fraud victims?

Meantime, a D.C. Circuit federal appeals court panel will issue a ruling, also at any moment, almost certainly denying Trump’s claim of immunity from criminal prosecution. While that is pending, and while the Supreme Court is considering whether Trump should be deemed an insurrectionist who can be removed from the ballot, it appears that Manhattan District Attorney Alvin Bragg is gearing up for a late-March criminal trial against Trump — that is, Bragg will leapfrog ahead of the federal prosecutions, which are in limbo for various reasons. Bragg’s case is absurd, but he’ll have a Manhattan jury and a judge sympathetic to the prosecution. I don’t think Trump should be convicted of any felonies, much less the 34 felonies Bragg has charged, but would anyone be surprised if he were convicted of one or more? I wouldn’t.

I have been contending for a couple of years that after the initial effect of the Trump lawsuits, after the lawfare first galvanized Trump’s base and rallied Republican sympathizers offended by the Democrats’ strategy, there would come a tipping point. The trials would proceed, the damaging evidence would be publicized, juries would start returning verdicts that he was liable for civil wrongs and/or guilty of criminal offenses. With the relevant audience shifting from Republican primary voters to the national electorate, with whom Trump is unpopular, any momentum Trump had gained would peter out, the bottom would fall out of his support, and the Democrats would cruise to victory in November.

My assumption was that the tipping point would come in the spring. It may, instead, have already started. But understand this: As much as you may believe Trump has been wronged here — and I think the damage award of over $83 million is ridiculously inflated — this is what it is going to be like for the next nine months, every day, if Republicans nominate Trump.

There is still time for even Trump sympathizers to realize how likely it is that nominating Trump means electing Biden. But time is short.