Donald Trump is sending a lawyer to another courtroom on Friday, when the former president will try to overturn the Manhattan civil case in which the judge said Trump raped writer E. Jean Carroll.
The oral arguments will have a different, Harvey Weinstein-esque tone, judging by court filings.
As the presidential election approaches, Trump’s legal team has rushed to erase the Republican candidate’s rap sheet and fix his court losses.
On Friday, lawyer D. John Sauer is scheduled to be in a federal appeals courtroom in Manhattan, where he will fight the 2023 jury verdict that found the former president responsible for defaming and sexually abusing Carroll. The judge who oversaw the trial later said: “Trump ‘raped her’ as many people commonly understand the word ‘rape’.”
Before a three-judge panel of the 2nd Circuit Court of Appeals, Sauer is set to argue that the jury in Carroll’s trial should never have heard evidence of other sexual-assault allegations.
That evidence included the “Access Hollywood” tape and testimony from two women who told jurors Trump sexually assaulted them, one saying she was assaulted on a plane in the mid-1970s and the other saying she was assaulted at Mar-a-Lago in 2005
It’s a strategy that worked as a lure for Weinstein.
In April, New York state’s highest court overturned Weinstein’s conviction for sex crimes in Manhattan in 2020 in a 4-3 decision that found the trial judge improperly allowed the testimony of three accusers who were not part of the indictment. (Weinstein remains imprisoned in New York awaiting a retrial; he is serving a separate 16-year sentence for a rape conviction in Los Angeles, who is also appealing.)
But lawyers who won Weinstein’s appeal told Business Insider that what worked for their client probably wouldn’t work for Trump.
That’s because Weinstein’s jury was seated in a New York state criminal courtroom, where longstanding rules of evidence strictly limit so-called prior evidence of wrongdoing, lawyers for the disgraced Hollywood mogul said.
Federal court is a very different place, they said, where Trump will likely find the rules of evidence insurmountable against him.
“It’s not apples and apples,” said Barry Kamins, Weinstein’s appeals lawyer and a former Brooklyn state Supreme Court judge.
Federal trial rules allow evidence of other sexual assault allegations to be heard in civil sexual assault trials, and since the mid-1990s, Kamins, now Aidala, Bertuna & Kaminshe said
“It’s funny, but Trump would be much better off in state court than in federal court, so that may be why they took the case there,” Kamins said of Carroll’s lawyers.
The architect of the law Carroll used to file a lawsuit against Trump agreed.
Marci Hamilton, who heads the child abuse victim advocacy group Child USA and helped draft the New York law, said civil cases allow witnesses to be brought forward to “show a pattern.”
“That’s basically what’s going on, especially when you have a perpetrator with multiple alleged victims,” he said. “That pattern makes a big difference in explaining to the jury exactly who that person was that was doing this and how they operated.”
Trump’s lawyers are making the Weinstein argument
The appeal is about Carroll’s first of two lawsuits against Trump, in a case he filed under New York’s Adult Survivors Act.
The law, passed in the wake of reports of Weinstein’s sexual predation and the #MeToo movement, opened a one-year window where accusers could file sexual misconduct lawsuits that would otherwise be barred by the statute of limitations.
Carroll accused Trump of sexually abusing her in the mid-1990s in a Bergdorf Goodman dressing room. The trial included searing testimony from Carroll herself, as well as two of her friends who testified that, at the same time, she told them that Trump had sexually assaulted her.
U.S. District Judge Lewis Kaplan also allowed testimony from Jessica Leeds and Natasha Stoynoff, whose statements were not part of the lawsuit.
Leeds described being forcefully beaten on a plane 20 years before Carroll and Trump’s meeting in the dressing room. Stoynoff, a journalist, described a similar attack during an interview at Mar-a-Lago. That attack happened in 2005, he said, 20 years after Carroll’s attack and around the time Trump bragged about grabbing women by the genitals on the “Access Hollywood” tape.
E. Jean Carroll entering Manhattan federal court. Brittany Newman/AP
Similar testimony condemned the Weinstein case.
New York state’s highest court ruled that the prosecution’s misconduct witnesses (the trio who testified that Weinstein sexually assaulted them but whose claims were not part of the criminal indictment) should never have taken the stand.
In Trump’s appeal brief, his lawyers argue that Leeds and Stoynoff’s testimony and the “Access Hollywood” tape should never have been allowed at trial, citing a federal rule that is similar to the state one that thwarted the Weinstein prosecution.
The jury, Trump’s lawyers argue in the brief, in particular, should never have heard highly damaging testimony from Leeds recalling Trump telling her, “You’re that pussy on the plane,” or Stoynoff saying Trump insisted, “We’re going to have a matter”.
Diane Kiesel, a professor at New York Law School and a former state judge, told BI that she believed the evidence met the criteria to be included in the trial. The “Access Hollywood” tape and testimony from Leeds and Stoynoff helped prove Trump’s “motive, intent and opportunity” in his meeting with Carroll, as federal rules of evidence allow, he said.
“The fact that you have E. Jean Carroll saying, ‘He did this to me in Bergdorf.’ And he says, ‘You can do this anytime to women who let you do it,’” she said. “And then two other women come out of the woodwork from 50 years ago and said she did the exact same thing: for me, I think it goes right to the motive, the intent.”
Kaplan, the judge, wrote in his ruling that the evidence was also allowed at trial under different federal rules of procedure. Those include rules that allow testimony about “similar acts” in sexual assault cases.
“As his testimony shows, Trump engaged in a pattern of pouncing on a woman in a semi-public setting, pressing his body against her, kissing and sexually touching her without consent, and then categorically denied the allegations and declared that the accuser was too unattractive to assault her,” Carroll’s attorneys wrote in a filing.
Civil cases like Carroll’s have different standards
Friday’s court battle will feature Carroll’s attorney, Roberta Kaplan, who oversaw both verdicts in Carroll’s favor. In the May 2023 verdict, the jury found Trump liable for sexual assault and defamation and awarded Carroll $5 million in damages. In the second trial earlier this year, a separate jury said Trump owed Carroll an additional $83 million in defamation damages.
Kaplan (who is not related to the trial judge) will face Sauer, who recently won a landslide victory for Trump before the US Supreme Court, which recognized broad presidential immunity in the criminal election interference case against him.
Trump walked out during closing arguments from attorney Roberta Kaplan in the middle of Carroll’s second civil trial. REUTERS/Jane Rosenberg
Trump’s best chance in Friday’s appeal may be to continue to argue that the other two accusers who testified, Leeds and Stoynoff, described assaults that were too distant in time from Carroll’s to be relevant, said Arthur Aidala, a lawyer for Weinstein.
Although the federal rules of evidence for civil sexual assault trials are much broader, a judge still can’t go too far, he said.
“It has to be reasonable, and the appellate court can take into account the distance in time between the plaintiff’s accounts and these ‘propensity’ witnesses,” he said.
Crucially, the jury in Carroll’s case did not need to find that Trump sexually abused Carroll “beyond a reasonable doubt,” the standard in criminal trials.
Instead, he had to find that it was “more likely than not” that Trump sexually assaulted Carroll, a much more common standard in civil cases.
Even if the appeals court finds that some of the trial testimony should not reach the jury, the rule gives room to allow the verdict to be upheld anyway, according to Hamilton, the architect of the Adult Survivors Act.
“It’s not uncommon in a civil case to have defendants try arguments from the criminal law to try to bolster their case,” he said. “But at the end of the day, they’re just apples to oranges. They’re not the same.”
Correction: September 5, 2024 – An earlier version of this story misstated the timeline of two impeachments against Trump. He is accused of sexually assaulting Leeds 20 years before Carroll said she was assaulted by Trump, not 20 years before he was found responsible for sexually abusing Carroll.