Donald Trump is dispatching a lawyer to yet another courtroom Friday, when he’ll try to overturn the Manhattan civil case that concluded the former president is a rapist.
The oral arguments will have a distinct, Harvey Weinstein-esque ring to them, judging from the court filings.
As the presidential election nears, Trump’s legal team has been rushing to erase the Republican candidate’s rap sheet and tidy up his lawsuit losses.
On Friday, lawyer D. John Sauer is scheduled to be in a federal appellate courtroom in Manhattan, where he’ll fight the 2023 jury verdict that found the former president liable for defaming and sexually abusing writer E. Jean Carroll. The judge who oversaw the trial later concluded that “Trump ‘raped’ her as many people commonly understand the word ‘rape.'”
Before a three-judge panel for the Second Circuit Court of Appeals, Sauer is set to argue that the jury in Carroll’s trial should never have heard evidence of other alleged sexual assaults.
That evidence included the “Access Hollywood” “grab ’em” tape, and testimony by two women who told the jury Trump sexually attacked them, one on a plane in the mid-70s and one at Mar-a-Lago in 2005.
It’s a strategy that worked on appeal for Weinstein.
In April, New York state’s top court overturned Weinstein’s 2020 Manhattan sex crimes conviction in a 4-3 decision that found the trial judge improperly allowed testimony by three accusers who were not part of the indictment. (Weinstein remains jailed in New York pending a retrial; he is separately serving a 16-year sentence from a rape conviction in Los Angeles, which he is also appealing.)
But the lawyers who won Weinstein’s appeal told Business Insider that what worked for their client probably won’t work for Trump.
That’s because Weinstein’s jury sat in a New York state criminal courtroom, where long-standing rules of evidence strictly limit so-called prior bad act evidence, the disgraced Hollywood mogul’s lawyers noted.
Federal court is a very different place, they said — where Trump will likely find the rules of evidence insurmountably stacked against him.
“It’s not apples and apples,” explained Barry Kamins, a Weinstein appellate attorney and former Brooklyn-based state Supreme Court justice.
Federal trial rules allow evidence of other sexual assaults to be heard at civil sexual assault trials, and have since the mid-’90s, said Kamins, now at Aidala, Bertuna & Kamins.
“It’s funny, but Trump would have been much better off in state court than in federal court, which may be why they brought the case there,” Kamins said of Carroll’s lawyers.
The architect of the law Carroll used to bring a lawsuit against Trump agreed.
Marci Hamilton, who runs the sexual abuse victim advocacy group Child USA and helped write the New York law, said civil cases allow presenting witnesses to “show a pattern.”
“That’s basically what’s happening — especially when you have a perpetrator with multiple alleged victims,” she said. “That pattern makes a big difference in explaining to the jury exactly who this person was that was doing this and how they operated.”
Trump’s lawyers are making the Weinstein argument
The appeal is over the first of Carroll’s two trials against Trump, in a case she brought under New York’s Adult Survivors Act.
The law — passed in the wake of reports about Weinstein’s sexual predation and the #MeToo movement — opened a one-year window where accusers could bring 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 Goodmans department store dressing room. The trial included searing testimony from Carroll herself, as well as from two friends who testified that she contemporaneously told them Trump sexually assaulted her.
US District Judge Lewis Kaplan also permitted testimony from Jessica Leeds and Natasha Stoynoff, whose claims were not part of the lawsuit.
Leeds described being forcibly groped on a plane twenty years prior to when Trump was found to have sexually assaulted Carroll. Stoynoff, a journalist, described a similar attack during an interview at Mar-a-Lago. That attack happened in 2005, she testified, twenty years after the Carroll attack and around the time Trump bragged about grabbing women by the genitals on the “Access Hollywood” tape.
Similar testimony doomed the Weinstein case.
New York state’s top court ruled the prosecution’s prior-bad-act witnesses — the trio who testified Weinstein sexually assaulted them but whose claims weren’t part of the criminal indictment — should never have taken the stand.
In Trump’s appeal brief, his lawyers argue testimony from Leeds and Stoynoff and the “Access Hollywood” tape should have never been allowed in the trial, and they cite a federal rule that is similar to the state-level one that foiled the Weinstein prosecution.
The jury particularly should have never heard highly prejudicial testimony from Leeds recalling that Trump told her, “You’re that cunt from the airplane,” and Stoynoff saying Trump insisted “we’re going to have an affair,” Blanche and Bove argue.
Diane Kiesel, a New York Law School professor and former state trial judge, told Business Insider she believed the evidence met the criteria for being included in the trial. The “Access Hollywood” tape and testimony from Leeds and Stoynoff helped demonstrate Trump’s “motive, intent, and opportunity” in his encounter with Carroll, as allowed under federal evidence rules, she said.
“The fact that you’ve got E. Jean Carroll saying, ‘He did this to me in Bergdorf’s.’ And he says, ‘You can do it at any time to women, they let you do it,'” she said. “And then two other women climb out of the woodwork from 50 years ago and said he did the exact same thing — to me, I think it goes straight to motive, intent.”
Kaplan, the judge, wrote in his ruling that the evidence was allowed in the trial under different federal rules of procedure as well. Those include rules that allow for testimony about “similar acts” in sexual assault cases.
“As their testimony shows, Trump engaged in a pattern of abruptly lunging at a woman in a semi-public place, pressing his body against her, kissing her, and sexually touching her without consent, and later categorically denying the allegations and declaring that the accuser was too unattractive for him to have assaulted her,” Carroll’s lawyers wrote in a brief.
Civil cases like Carroll’s have different standards
Friday’s courtroom battle will feature Carroll’s lawyer Roberta Kaplan, who oversaw the two verdicts in favor of Carroll. In the May 2023 verdict, the jury found Trump liable for sexual abuse 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 off against Sauer, who recently won a resounding victory for Trump before the US Supreme Court, which recognized sweeping presidential immunity in the criminal election interference case against him.
REUTERS/Jane Rosenberg
Trump’s best chance in Friday’s appeal may be to continue to argue that the two other accusers who testified, Leeds and Stroynoff, described assaults that were far too distant in time from Carroll’s to have been relevant, said Weinstein attorney Arthur Aidala.
While federal rules of evidence for civil sexual assault trials are far more expansive, a judge still can’t go too far, he said.
“It has to be reasonable, and the appellate court can take into consideration the distance in time between the accounts of the plaintiff and these ‘propensity’ witnesses,” he said.
Crucially, the jury in Carroll’s case didn’t need to reach their conclusion that Trump sexually abused Carroll “beyond a reasonable doubt” — the standard in criminal trials.
Instead, they needed to find it was “more probable than not” that Trump sexually assaulted Carroll, a standard far more common in civil cases.
Even if the appeals court finds that some of the trial testimony shouldn’t have reached the jury’s ear, the standard gives some room to allow the verdict to be upheld anyway, according to Hamilton, the architect of the Adult Survivors Act.
“It’s not unusual that in a civil case, you’ll have the defendants try arguments from the criminal law to try to strengthen their arguments,” she said. “But in the end, it’s just apples to oranges. They’re not the same thing.”
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