Criminal Indictments Threaten Jail For Trump, But Carroll’s Civil Case Starts Next Month

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Donald Trump of course feels most threatened by the criminal cases that will likely soon be brought against him; those cases threaten time behind bars. But Trump has not yet been indicted in those cases, and the pretrial proceedings will take time.

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Consider, however, the case brought by E. Jean Carroll, trial of which is scheduled to begin on April 25 — less than a month from now.

E. Jean Carroll says that, years ago, Trump raped her. While he was president, Trump denied committing rape, and he made some allegedly defamatory statements about Carroll. Carroll sued. That lawsuit is now delayed on appeal, while a court decides whether Trump’s statements were in the course of his presidential duties. If Trump wins that appeal, Carroll’s lawsuit will have hit a serious — and perhaps fatal — speed bump.

After Trump left the presidency, he made more allegedly defamatory statements about Carroll. A New York law also permitted plaintiffs to assert previously time-barred accusations of sexual battery. Carroll then filed a second lawsuit. Trial of that second lawsuit — asserting post-presidency defamation and the previously time-barred battery — is scheduled to begin on April 25.

The judge presiding over that second lawsuit has held that Carroll will be permitted to offer as evidence both the “Access Hollywood” tape in which Trump brags about grabbing women by the genitals and the testimony of two other women who have made similar claims of sexual assault against Trump.

That’s a tough case for Trump. You can win a case in which one person accuses you of something; you argue that the one person is an untrustworthy, vindictive nutcase.

But it’s harder when the testimony of three people comes in against you. When you argue that three different people are all untrustworthy, vindictive nutcases, the jury may start to question exactly who is the nutcase.

Remember too that juries must be unanimous in criminal cases. If one die-hard Trump loyalist sits on the jury in a criminal case against Trump, then the jury will hang. Trump will not be convicted.

But juries in civil cases do not need to be unanimous. Thus, a lone Trump die-hard could sit on the Carroll jury, and Trump could still be found liable.

It’s unlikely that an adverse verdict in a defamation and battery case will do serious damage to Trump’s finances. Even an award of substantial damages (for claims such as these) is unlikely to affect an extraordinarily rich man’s wallet in a significant way.

But the trial will still hurt Trump. Every day, for weeks, the press will report on the testimony in the E. Jean Carroll case, and none of that testimony will reflect well on Trump. There will, naturally, be evidence that reflects poorly on E. Jean Carroll (as Trump launches his counterattack), but that evidence is not nearly as newsworthy.

The likely indictments for criminal misconduct threaten Trump with time behind bars. But the E. Jean Carroll case will go to trial first, and the press coverage of that trial will be both massive and harmful to Trump.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at [email protected].

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Biglaw, Courts, Donald Trump, In-House Counsel, Mark Herrmann, Politics