4 Takeaways from the E. Jean Carroll Verdict against Trump

The Washington Post / Aaron Blake

16:12 JST, May 10, 2023

Late in the 2016 presidential campaign, video surfaced of Donald Trump speaking cavalierly about sexually abusing women. The GOP initially blanched at the disclosure, with many calling for Trump to drop out. But it soon warmed to his “locker room talk” explanation, stood by him, and he won.

A major verdict against Trump on Tuesday took this issue decidedly out of “locker room talk” realm.

For the first time, when it comes to a series of claims of sexual misconduct against Trump, the legal system has issued a judgment against him. The civil jury in E. Jean Carroll’s defamation lawsuit found Trump liable both for sexually abusing Carroll and for defaming her as he defended himself against her allegations. The jury did not find Trump liable for rape, which was what Carroll called his attack, but he will have to pay $5 million in combined damages for injuring her and calling her a liar.

Below are some takeaways.

1. Parsing the verdict

There will undoubtedly be some confusion about how Trump was found to have sexually abused Carroll but not raped her, as she has claimed for years. And Trump’s defenders quickly homed in on that latter aspect of the verdict.

“This was a rape claim, this was a rape case all along, and the jury rejected that, made other findings,” Trump lawyer Joe Tacopina said afterward. “We’ll obviously be appealing those other findings.”

This boils down to what the jury thought was likely. (The standard in civil cases is a preponderance of evidence – more likely than not – rather than beyond a reasonable doubt, which is the standard in criminal cases.) Judge Lewis A. Kaplan offered jurors three forms of battery under which Trump could be liable: rape, sexual abuse and forcible touching.

For the jury to find it was rape, the judge said it would have to find that there was sexual intercourse by force, including penetration. For sexual abuse, the requirement was touching sexual or intimate parts by force. It found that the latter was likely. (Kaplan said forcible touching “includes squeezing, grabbing, pinching, rubbing or other bodily contact that involves the application of some level of pressure to the victim’s sexual or intimate parts.”)

The verdict will at least allow Trump to say that he wasn’t found liable for an offense as serious as the one Carroll alleged. But the size of the damages and the speed with which the jurors reached their verdict (just a few hours) suggests they were easily convinced Trump engaged in the kind of conduct he spoke about on the “Access Hollywood” tape, in which he said that if you were a star, women would let you get away with what you want.

2. The GOP’s new dilemma

Trump has weathered any number of controversies thanks to a concerted, years-long campaign to claim virtually any charge against him is part of a “witch hunt.”

This was not a criminal case, but regardless, the “witch hunt” claim could be more difficult to pull off in this instance.

For one thing, the verdict deals with decidedly ugly conduct. Whether Trump committed financial crimes, leveraged Ukraine to interfere in an American election or incited a mob on Jan. 6, sexually abusing a woman differs from those – it is a particularly sensitive issue.

And it’s an issue on which the American public’s verdict could be harsher. In a November 2017 poll conducted amid a series of unrelated sexual harassment allegations against Trump, Americans said nearly 2-to-1 (61 percent to 33 percent) that Trump should be impeached and removed from office if he were proven to have sexually harassed women. Independents agreed, 59 percent to 34 percent, and even 28 percent of Republicans agreed. Support in this hypothetical case was higher than in either of Trump’s first or second impeachments.

A major question now is whether Americans feel this has been proven, and whether they feel the same way.

The verdict also seems to confirm something that many people believed about Trump – at least at one point. A CNN poll around the same time in 2017 found that Americans believed it was “mostly true” that Trump had made unwanted sexual advances against women by a 61-to-32-percent margin. (It bears noting that the verdict here goes beyond unwanted advances.)

Beyond that, there’s the matter of how Trump claims this is part of the witch hunt. He has set about doing that, of course, alleging that critics like conservative lawyer George Conway are behind the case. But while the trial was held in heavily blue Manhattan, this was not a case brought by a Democratic prosecutor or by the supposed “deep state” in the Justice Department.

Shortly after the verdict, Republicans generally responded like you’d expect them to: declining to comment or saying they weren’t familiar with what had happened.

But one of Trump’s 2024 opponents, former Arkansas governor Asa Hutchinson (R), said, “The jury verdict should be treated with seriousness and is another example of the indefensible behavior of Donald Trump.”

No. 2 Senate Republican, Sen. John Thune (R-S.D.), meanwhile, seemed to suggest that the verdict should cause Republicans to rethink their 2024 calculus, citing Trump’s many legal problems.

“I think there’s going to be an ongoing drumbeat over the next couple years as [Trump] is a candidate,” Thune said. “People are going to have to decide if that’s a factor. For a lot of voters, it’s going to be.”

Sen. John Cornyn (R-Texas) added that “I don’t think he can get elected.”

One Republican who did defend Trump in no uncertain terms was Sen. Marco Rubio (Fla.), who said: “The jury is a joke. The whole case is a joke.”

3. The judge’s striking warning to jurors

Trump’s tendency to attack those who run afoul of him and the proceedings themselves led the judge on Tuesday to offer a striking word of caution to jurors.

They are free to speak about the trial, Kaplan said, but he strongly advised them not to.

“My advice to you is not to identify yourself,” Kaplan told the jurors. He said that if they do, they shouldn’t do it “for a very long time.”

Kaplan last month opted to use an anonymous jury in the case, citing how “Mr. Trump repeatedly has attacked courts, judges, various law enforcement officials and other public officials, and even individual jurors in other matters.”

4. The civil system strikes back at Trump

A civil verdict against Trump provides a measure of irony. That’s because the litigious Trump, more than virtually anyone in America, has wielded the civil court system against his foes relentlessly.

A Wall Street Journal review in 2016 found that Trump and his companies had filed a “multitude of lawsuits.” It said, “It is difficult to determine whether Mr. Trump files more lawsuits than others with similarly broad business interests.” But many of the suits were eyebrow-raisers. He sued alleging the band Earth, Wind & Fire wasn’t A-list talent. He sued a Miss USA contestant for allegedly disparaging the pageant. He threatened to sue Sen. Ted Cruz (R-Texas) for allegedly untrue campaign advertising.

Such efforts have only ramped up in recent years, with Trump suing a series of media outlets and political opponents, including Hillary Clinton, his former lawyer Michael Cohen and New York Attorney General Letitia James (D). Those cases have sometimes been facially ridiculous, and they have often been dismissed and sometimes been found to be baseless or frivolous.

Just last week, a Trump lawsuit against the New York Times was thrown out. The judge ordered Trump to pay all attorney’s fees, other legal expenses and associated costs and said Trump’s claims failed “as a matter of constitutional law.”