Artist’s rendition of the proceedings, courtesy of The Washington Post

 

Jay Kou

This is shaping up to be a winter of great discontent for former president Trump. Yesterday was a prime example, as jury selection and opening arguments got underway in the second E. Jean Carroll trial in eight months. (Note that this piece contains a discussion of sexual assault and rape, given the nature of the proven claims.)

In the earlier trial, a jury found Trump liable for sexual assault and for defaming E. Jean Carroll again in 2022. It awarded her $5 million. The current case is about Trump’s first defamation of Carroll, which took place while he was president and has been tied up while the courts and the Justice Department resolved whether the president could be sued for defamatory statements made while in office.

Besides the start of yet another trial, Trump got another unwelcome piece of news yesterday. The Second Circuit ruled that he did not have presidential immunity from a civil suit, meaning this case could move forward.

Here are three things to know and keep an eye on.

  1. This trial is only about how much Trump will have to pay Carroll in damages, but Trump has already made this far harder for himself.

  1. There is a no-nonsense judge who is running a very tight ship and will keep the jury laser-focused on why they are there.

  1. The jurors who were picked were screened in an unusual way and were in for an experience rarely seen outside of mobster criminal trials.

Let’s dive in.

It’s the damages, stupid

Trump really can’t help himself, and is his own worst enemy, when it comes to courtroom behavior and what is likely to increase the judgments and penalties assessed against him. He did it in Judge Engoron’s courtroom recently, when he insisted on speaking at closing arguments (and had to be shut down with an admonition to defense counsel to control his client). And he’s already done it in this second Carroll case in a federal court presided over by Judge Lewis A. Kaplan.

Specifically, Trump posted about Carroll some 30 times on Truth Social yesterday, mostly amplifying what trolls were falsely and maliciously saying about her. Trump himself posted on Tuesday that the case was “fabricated lies and political shenanigans.” He declared, “I am the only one injured by this attempted EXTORTION.”

If you’re thinking, “Hey, isn’t this even more defamation?” you’d be correct. The question of whether Trump sexually assaulted and defamed Carroll has already been settled by a jury. It is a legal fact. Each time he denies it, he opens himself up to more exposure. Simple concept, but impossible somehow for Trump to grasp.

Carroll’s attorney, Shawn G. Crowley, took full advantage of these real-time antics. In her opening remarks, she reminded the jury that Trump not only continued to falsely label Carroll a liar after last year’s trial but all this week has continued that drumbeat, including 22 social media posts on the very first day of trial, by her latest count.

”How much will it cost to make him stop?” Crowley very smartly asked the jury to consider. A $5 million award in the prior trial didn’t deter him. What would? “After all,” Crowley argued, “this is a man who’s a self-professed billionaire.” 

And as MSNBC’s Katie Phang pointed out, Trump is facing some big guns. Carroll’s team includes the same expert damages witness, Prof. Ashlee Humphreys, who testified in the first Carroll case, quite credibly and compellingly. It bears noting that Humphreys was also the expert witness in the defamation damages trial brought by Ruby Freeman and Shaye Moss against Rudy Giuliani, which resulted in a whopper of a verdict: $148 million.

Indeed, there are striking resemblances between Trump’s defamation damages case today and Giuliani’s. In both instances, a court first found that the question of liability had already been settled as a matter of law, so the trial was limited to how much they should pay in damages. In both instances, the defendant was unrepentant, even on the steps of the courthouse, continuing to deny the truth of the claim and digging themselves ever deeper into a hole.

Trump’s constant brags about his supposed wealth may also come back to bite him. As legal analyst Andrew Weissman noted,

Trump’s repeated claims of being a multi-billionaire will make any claim of poverty to the E. Jean Carroll jury weighing damages against him a very tough hill to climb, and make a large jury award against him that much more likely and well founded legally and factually.

How big of an award would be enough to get a billionaire to stop defaming a woman he sexually assaulted? That is a question the jury now must weigh.

The judge ain’t having it

It remains rather amazing and disturbing to me that a former president of the United States is a defendant where a federal judge needs to make the following statement to the jury:

For purposes of this trial it has been determined already that Mr. Trump did sexually assault Ms. Carroll, that he knew when he made the statements about Ms. Carroll that the statements were false, or he made them with reckless disregard as to whether they were true or false.

Indeed, Judge Kaplan made clear that Trump did rape Carroll, and Trump could not argue otherwise. New York law defines rape very narrowly as only including penile penetration. But non-consensual sexual penetration of any kind is generally considered rape.

So in an order delivered Saturday night, Judge Kaplan barred the defense from arguing that the first jury had not believed Carroll’s “rape” claim, ruling that its finding that Trump forcibly and without consent penetrated Carroll’s vagina rendered her rape claim “substantially true under common modern parlance,” even if it did not fit the definition of rape under New York law. It would be a waste of the jury’s time to focus on how Carroll was sexually assaulted when the only question before them is one of defamation damages.

And during arguments, Judge Kaplan has already put Trump’s lawyer, Alina Habba, in her place. As Joyce Vance noted in her newsletter, Civil Discourse, when Habba sought to revisit what could and could not come into evidence, including old tweets by Carroll of a sexual nature, Judge Kaplan quickly overruled her. 

“Ms. Habba, I have heard you. I have considered what you have to say. And I have ruled,” Judge Kaplan said at one point. “That’s it. In my courtroom, when a ruling is made, that’s the end, not the beginning, of the argument.”

This no-nonsense approach is critical in a trial where there is a sitting jury and where remarks by counsel could potentially prejudice them in their decision. 

A jury experience like few others

The danger that jurors are in just by serving on a Trump trial is now well understood. And Judge Kaplan is taking no chances. As a legal writer for the LA Times, Harry Litman, noted, that the judge had to instruct the jury, in a moment reminiscent of Reservoir Dogs, that they were there anonymously, and that they should even refer to one another by fictitious names. 

There’s good reason for that level of secrecy. It’s no coincidence, in my mind at least, that Trump came to the trial to attend the jury selection phase of it. At some point, according to the New York Times, Trump even let his gaze fall upon two jurors for several moments when they responded that they believed the 2020 election had been stolen. (Don’t worry, neither juror made it onto the panel.)

Jurors were asked if they voted, had attended Trump rallies, or contributed to presidential candidates. Importantly, they were asked if they belonged to fringe groups like QAnon, Antifa, the Proud Boys, and the Oath Keepers. Thankfully, no one answered yes, but it speaks to the times we are in that jurors need to be screened for political extremism.

This is a taste of what we are likely to see when jury selection gets going in D.C. and other cases such as the Georgia RICO action and the Manhattan trial for false business filings. Increasingly, Trump will be using his court appearances as a way to stay squarely in the headlines and insist that he is being unfairly treated by the legal system. 

But none of Trump’s behavior is likely to result in a favorable jury verdict for him. And as we’ve seen already, it may even worsen his liability. This second Carroll case is likely to wind up fairly quickly, perhaps within a couple of days given its limited scope. After that, the verdict will be widely anticipated, and it will be an important test of how far Trump can push things before juries and judges put a stop to him.