Deep Dive
Shownotes Transcript
Hello and welcome. This is a special breaking news edition of Prosecuting Donald Trump.
I'm here with my friend, Mary McCord, to cover this as much as we can and give you our insight into what we know and what we expect at this point is going to happen. Hello, Mary. It's nice to see you after a whole day. Exactly. We had planned when we recorded this week's podcast that we would do an emergency edition when there was a verdict. We just didn't expect it would be quite this fast.
Well, this was an astonishing moment in New York Tuesday afternoon, which is when we were talking to you. A jury of nine people, six men and three women, rejected
Donald Trump's defense that he did not defame and did not sexually assault E. Jean Carroll. They found for the plaintiff unanimously, and they did so in two and a half hours. That's a short time, Mary. You and I have tried a lot of cases, and I can tell you
I have never had a criminal verdict in that time. It's not all that surprising to me, though, because, you know, juries do listen to the evidence. And when you have a good, attentive jury, they aren't deciding things beforehand, but they obviously are listening. And they can, once they get into the jury room, determine, you know what, we maybe are all in accord. So I wasn't that surprised that it was quick, but I don't know. What was your reaction?
Well, I guess, you know, I thought they might at least take the rest of the day because they didn't even have the entire day. They had only the day after the judge read the jury instructions, which takes a while. It takes sometimes, I don't know how long it took today, but oftentimes in my criminal cases, it would take an hour to do jury instructions. They have to retire to the jury room. They have to elect a foreperson. You know, they have to start talking about the evidence. And then in this case, they had to go through and answer, you know, up to 10 questions. Now they got to skip questions.
because they answered the second one in an affirmative way, so they got to skip one. But they have to work their way through the jury room. So I was really guessing tomorrow. And I, like you, other than maybe some misdemeanor trials when I first became a prosecutor, I don't think I ever had a verdict this fast, and certainly not in one of the sex offense cases that I prosecuted. Yeah.
Yeah. So let's break down a little bit first what happened and then we'll talk about what it means, what its implications are, and then talk about what kind of appeals Donald Trump might have. And also just remember, this is one of two cases that E. Jean Carroll has against Donald Trump. So we can talk about the implications of this verdict for that second case.
trial. So first, as you mentioned, Mary, you said that there was a pretty lengthy verdict form. I think it was about four pages. There were 10 questions. And can you maybe just walk us through what the jury found in terms of liability or no liability? And then we can break out sort of the financial component.
Yeah. So it's helpful to take one step back and remember that in this civil case, E. Jean Carroll essentially brought two different claims. One was a claim of battery, and battery can be based on any type of physical assault. And she was able to bring that claim only because of a statute signed into law last year called the Adult Survivors Act, which allowed victims of sexual abuse to bring a civil case for damages in
even in cases where the statute of limitations for a criminal case has expired. So to the extent people are now thinking, will Trump now be charged criminally? No, he will not be for this particular sexual assault. Mary, can I interrupt you for a second? Because I just think one of the bigger picture issues for me, let's leave aside
Donald Trump and the political elements of it. But when you say that, what I end up thinking when I'm looking at a woman who is 79 years old, who on the stand talked a lot about how she was raised and that you didn't say anything, you didn't go to the police. It was unheard of to do that. And, you know, when I think about, you know, my mom, who is in her 90s, and, you know, she went to Vassar,
You know, you're getting the picture. This would not be part of her makeup of what you do. The idea that the law was changed to deal with bringing justice or allowing these women to have their day in court and to have justice, I just think is such an optimistic thing.
a good development in the law because when you put together her story about when she would complain and that she said it was only because of the Me Too movement that she thought this was actually something that she should do and could do and it was her obligation to do,
It's so great that the law changed to permit people like E. Jean Carroll to come forward. I don't know if I'm too much on a soapbox or whether you disagree. I agree with you. And certainly in that era, and even now, it's very, very difficult for victims of sexual assault to come forward. When you report to police, sometimes you get police officers who ask you all kinds, well, they'll always ask you all kinds of questions, but sometimes they're not the warmest
individuals, sometimes they can be a little bit accusatory of sort of like, why were you in that position? Right. And things like that. And so it's not comfortable and you're telling intimate details. I think I've mentioned before on our podcast that then you have to go to a hospital and have examinations done. So it's not fun even now. But in years past. And Mary, you've prosecuted these types of cases. I mean, you've dealt with victims and had to have that relationship
to deal with victims and make them feel
I mean, comfortable is the wrong word, but I would say as least uncomfortable as possible so they don't feel re-victimized. That's right. And so, you know, back in the day when this assault happened, I mean, even E. Jean Carroll's own friend, one of the witnesses who testified, said, no, don't report it. You're talking about Donald Trump. Your life will be miserable. And by the way, that's what happened. It's exactly what happened. He lied about her. He defamed her. What she said happened.
That's right. And so it's not a wonder, you know, that women failed to report. So you're right. This act was a chance to say, look, we understand that sort of culturally this has been something that has been hidden under the rug for a long time. We're going to give women a year. It's just a year look back to bring those claims. So, Mary, this entire thing.
sidebars because I interrupted you, which I really shouldn't do. But you were about to explain to us sort of how the sort of verdict form worked in terms of liability and then damages. So my apologies. No, no, no. It was a good detour. So the one claim is battery, and that's based on a physical assault. The other claim was defamation. So the battery, even in
in E. Jean Carroll's complaint was based on a theory of a sexual assault, but it was based on sort of multiple possibilities. One is rape, you know, as defined under New York criminal law.
Another was he sexually abused her, as defined under criminal law. And another was he forcibly touched her, as defined under criminal law. These are all crimes, rape being the most serious, forcible touching being the least. And so the jury form on the battery charge starts with asking, did Ms. Carroll prove by a preponderance of the evidence that Mr. Trump raped Ms.
To that question, the jury answered no. And what's important here is that the definition of rape that the jury was instructed on and under New York criminal law involves sexual penetration.
By saying no to that question, the jury form went on consistent with the complaint because battery doesn't require a rape. It was just the facts of this case were based on sexual assault, rape being what Ms. Carroll alleged happened. But clearly, any type of sexual abuse is sort of subsumed, what we would call in the criminal parlance a lesser included offense, obviously.
of a rape. So lesser included is a sexual assault that does not involve penetration, an unwanted sexual assault. And so the second question, which is the jury had to go on to answer because they had answered no to the rape question was, did Mr. Trump sexually abuse Ms. Carroll? To that question, they answered yes.
Then they were able to skip the question about forcible touching because they had already found sexual abuse. They found it, right. They found it and go on to damages, which we can come back to. Like, was she injured? And if so, what is the amount of money that would compensate her for those injuries? And was the conduct wanton and reckless so that she should be entitled to punitive damages? But let's come back to damages in a minute.
The other count was the defamation count. And again, there were multiple questions for the jury. And what's important here is they had different standards of review. And that's particularly important because we've been telling listeners for a while that a civil case is easier to prove because it's a
preponderance of the evidence standard, criminal cases beyond a reasonable doubt. Is this, Mary, where we do our mea culpa? Yes, yes. This is where we say there's a detail here. There's a little caveat here that we failed to flag. And all of that is true for the battery count. And it's also true for the first element of defamation, which is, did Ms. Carroll prove, and this was the question to the jury, by a preponderance of the evidence, that's the standard you and I've talked about, that Mr. Trump's statement was defamatory? They answered yes.
by answering yes, they go on to the next part. And this is where the standard of review is tougher. And this is because we're talking about a public figure, Ms. Carroll, making a defamation claim. And so for public figures, the standard for the next element is a higher standard, clear and convincing evidence and not just preponderance. And there are two questions the jury had to answer under that clear and convincing evidence standard.
First, was Mr. Trump's statement false? Yes or no? And second, was the statement made with actual malice? The jury answered yes to both of those, false statement, actual malice by clear and convincing evidence, then going back to a preponderance of the evidence standard, whether she was injured and what amount of damages would compensate for that, and then go on to the punitive damage question. So one thing that's really interesting in terms of
thinking about this verdict so far in terms of what you've outlined is, as we've talked about, even though it's a civil case, the jury, all nine, had to be unanimous to find liability. And they did. They were unanimous
As to each of the things that you just talked about, Mary, all nine, in addition, they were unanimous not just when the standard was preponderance, which is 50% and a hair, just slightly more than 50%, but also clear and convincing evidence. And there's no set percentage that the law gives, but it's somewhere certainly above 50%. It could be 70, 75, 80. There's no maximization.
magical number in the law, but it's substantially more in terms of your burden and the burden that E. Jean Carroll had to meet that. And it meant that it was also unanimous that, again, they didn't lose a single juror. And that's where one of the things that's been reported was about at least one juror during jury selection had indicated that he
didn't really follow the news, but when he did, he listened to podcasts, which of course we love. We're not going to disabuse people of that. But he wasn't listening to our podcast. He was listening to a podcast that is very aligned with sort of extreme right-wing ideas
conspiracy theories. And, you know, that to me sort of set off red flags. And I have a big question about how he was let on the jury because as you know, both the plaintiffs and the defendants gets a certain number of challenges where they can, as of right,
what's called a peremptory challenge, hence the name peremptory, which is they can just strike somebody. And so it's sort of curious why they didn't. And I suspect we'll hear more about what the reason is. But even with...
somebody who might be a MAGA Republican. That's a little bit of a leap of faith, just because you're listening to that type of podcast doesn't mean that you adhere to all of those views. But even that potential person was able to just follow the law, listen to the facts, make a decision. You know, Mary, when we were talking about this earlier, I analogized this so much to the juror in the Manafort trial in Virginia,
who was a MAGA Republican, and she was the only juror who ever spoke after the verdict. There were convictions. And she said she literally left her MAGA hat in the car. And that was such a wonderful sort of metaphor for what she was doing, which was I swore an oath to the judge that I could listen to the law and apply it and be fair to the facts
She also made the comment when she said, you know, she found guilt, she said, "And by the way, this would be a really poor person for the president to pardon," which he then of course did. But I just thought that was so fascinating that she was like, "You know what? I might be a MAGA Republican, but I didn't sign up for, you know, for this." And, you know, that could very much be what happened here.
And I think it just the dichotomy here, right, between jurors who follow the law, who swear an oath, they take it seriously. The judge says, here are my instructions on how you are to evaluate the evidence in this case and how you are to apply the law to that evidence.
And in terms of what the law requires and what the factual findings are you're being asked to make, the judge, of course, makes legal determinations. The jury makes factual determinations. And this juror, regardless of what their political views are, was able to say, I've got an obligation here and I'm going to follow the facts and find the facts as I think they were proved by the evidence.
Contrast that to Donald Trump, who also swore an oath of office when he became the president of the United States. And throughout his presidency, time after time after time showed that he had no respect for the rule of law. He thought he was above the law. He thought the law didn't apply to him. He famously said that he could shoot someone on Fifth Avenue in your city of New York, Andrew, and and, you know, never be convicted of it. And I like the ring of that, Mary.
Yeah. Your city. There you go. So, I mean, it just really it shows that I do think so many Americans, they take their obligations seriously. They do believe in rule of law. And the other thing is, you know,
So there are a lot of people who are Trump supporters. And again, just because this particular person might have listened to a particular podcast does not necessarily mean he's a Trump supporter. There are plenty of Trump supporters, though, who do say, oh, I know he lies. I know he exaggerates. And he says all kinds of things I wish he wouldn't say. But I like his policies. So I still want to vote for him. And yeah, so people can, you know, people, people.
People are sometimes smarter than we give them credit for, and they know how to differentiate things, and they certainly know how to follow the rule of law. And Donald Trump knows how to follow the rule of law if he thought it applied to him. So talk to us a little bit about how did the jury go about figuring out the compensation? Like, what was the total? Right.
Yeah. And, you know, first of all, actually back to you on this, I think, but correct me if I'm wrong, that E. Jean Carroll did not actually ask for a specific number, did she, in her complaint? Yes, that is true. She did not. And I think this was a really smart strategy. And I think that it increased the odds of liability, of winning, even if it may have...
hurt her in terms of the amount of damages. One of the arguments that was made by her very skilled counsel in rebuttal was, hey, if this is just her trying to get money, why isn't she asking for the sun and the moon and the stars? She isn't.
She told you on the stand that she is here to clear her name. She wants her day in court, and they affirmatively told the jury, "We leave it to you what to do." She is not setting out exactly what the amount of money should be because that's not the point here. That's a risky strategy because you could imagine a jury coming back and saying, "You get a dollar."
Now, here they may have assumed that, well, if you are going to find battery by rape, battery by sexual assault, defamation, maybe not as much defamation, but you could imagine a jury saying, no, there's going to be real compensation, especially because she did talk about all the ways it affected her throughout her life.
But that was a risk. Most of the time, that is not what happens. And so it really paid off here to be able to say that. And then the jury really met her with, you know, we are going to just...
take the facts, assess them, and then we will make a judgment about what that means in terms of damages. So it really showed enormous faith. But I thought strategically, as in terms of her counsel, it was a really smart move, especially if they were a little bit concerned about one or more of the jurors.
Yeah. And I think also given that Trump all along has said this is basically just money grabbing, that I think it was a particularly smart strategic move to say, look, no, we're not even going to ask for a specific amount. I mean, I think there was evidence about – well, obviously there was evidence about the injuries she suffered and, you know, how – what it would take to sort of remediate your reputation. Right.
But they left it to the jury. Okay, so let's get to what the jury did. In total, about a $5 million verdict, but it was broken down $2 million in compensatory damages for the battery. So think about the trauma and the long-term trauma and fear and feelings that she had that she testified about as a result of the physical sexual assault. Okay.
On that particular claim of sexual assault and battery, the jury also awarded punitive damages. Now, not a huge amount, but $20,000. And importantly here, the standard for punitive damages is that Trump's conduct, here we're talking about the battery, was willfully or wantonly negligent, reckless, or done with such conscious disregard of the rights of Ms. Carroll.
that they would award punitive damages. So that standard is higher. It's not about compensating you for actual injury where you had to go and get medical treatment or what have you. It's about just, this is just punishment. That's why the word punitive is in there.
For defamation, they broke down the compensatory damages, and they did this because the jury instructions told them to, into two different dollar values. One million for compensatory damages other than reputational repair, a reputational repair program, which
There was testimony about and then $1.7 million for damages for the reputation repair program. And then with respect to defamation, they also went on to award punitive damages, finding that in making the defamatory statements, Trump had acted maliciously out of hatred, ill will, spite or wanton, reckless or willful disregard of the rights of a number.
And there they awarded, again, not a staggering amount, but $280,000 in pure punitive damages, finding that, you know, spite, hatred, ill will. So it's a pretty substantial, you know, measure of accountability for somebody who's just not been held accountable at all. And probably more importantly to him, you know, it's just –
It's a big strike against him. And that's why he's already, you know, on true social defaming her again. We'll be right back with more of Prosecuting Donald Trump. Five million dollars in damages.
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Let's talk about the defaming again. And let's also talk about what kind of appeal Trump could bring. Maybe let's do the appeal first. But when you were talking about the fact that most of the monetary award is not in punitive damages, I was putting on my civil lawyer hat. Most people don't probably recognize that you and I have actually dabbled in civil law. It's a small hat for me so far, but it's getting bigger.
I actually did a fair amount, I have to say, which I keep that under wraps. So one thing that's very good about that is one of the things that can be an issue on appeal is large punitive damage awards. And that's something that appellate courts frequently knock down, sort of these astronomical, out-of-control punitive damage awards.
That's not what happened here. Not at all. The bulk of it is very much compensatory. So the fact that you've got a couple hundred thousand dollars, obviously that is a lot of money, but it's not compared to the overall amount that was awarded. So that's a good fact.
if you were on the plaintiff's side. But Mary, you're the appellate lawyer, as I keep on reminding everyone. Well, you've done plenty of that work yourself as well. So what do you think? So, you know, again, I wasn't in trial all day, every day, and I haven't read the transcript of the trial every day. And when I was doing appellate work for more than 10 years,
actually quite a bit more than that. I would always start from the transcript so that I saw every single word that was said to determine what the significance of any possible appellate issues were and whether they were winning or losing issues. By the way, just so everyone knows, that's what a really good appellate lawyer does in a U.S. attorney's office. Somebody tries a case, sometimes you will also do the appeal, but somebody in appeals goes through the record
meaning everything that happened in court, they read everything, they read exhibits, they go through all of that looking for any and all weaknesses to be prepared to defend what happened. Or sometimes when you're in the government, if you see a real problem, you actually confess error because you have that dual role when you're in the government of not defending something that is a clear error that had harm to the defendant. But here,
With all those caveats, but just based on what we know from, you know, press reports and, you know, you've certainly followed the case more than your average bear, as they say. So what do you think? Yeah. You know, just taking what Joe Takapina said right after the verdict, right? He comes out on the steps of the courthouse, or I assume that was the steps of the courthouse, and talks about the various things they're going to appeal. And one of the things that he emphasized a couple of times was that
Access Hollywood tape should have never been admitted. It was too prejudicial under Rule 403. Rule 403 is a rule of evidence that basically says that a judge has discretion to keep out evidence that would just be unfairly prejudicial or unfairly cumulative. But that is evidence that is relevant evidence, evidence that's otherwise admissible. So here we're talking about evidence, the Access Hollywood tape, which, of course, you know, is where Trump famously said, when you're a star, you can grab women by the...
P-word and some other choice things. And so, first of all, on any appeal of that issue, the court of appeals would be reviewing for abuse of discretion, that the trial judge abused his discretion when he made this weighing of the probative value of that relevant evidence against the potential for unfair prejudice.
So first of all, that's a deferential standard that I don't see an appellate court reversing. More importantly, any error was harmless because there was so much other evidence, including his own deposition in this case, where he said essentially the same things, said it had been true for – and this is a quote – a million years before.
that people who are stars can do this to women, grab women by the P word. And that was the case. - By the way, Mary, there was fortunately or unfortunately. - Or unfortunately. - It just tells you everything because I'm not really sure where the fortunately part comes from.
And, you know, he actually said that second. He said, unfortunately, and then it's like he caught himself. Well, fortunately, which is so telling the jury had to see that because, you know, these were videotaped depositions that they saw. And when you watch it, you see that he said, unfortunately, and then you kind of see this like look at it and like, oh, well, in my case, fortunately.
So anyway, the point is the excess Hollywood tape could not possibly have affected the outcome of the trial. In other words, it was harmless because he did as much as the excess Hollywood tape and more so in his own deposition. Yeah, I have to say, I also feel like
it would fall into this sort of, you open the door. In other words, a lot of times evidence comes in because as part of your defense, you are saying, you know, the defense is X. And so the evidence comes in to rebut that argument. So if you're saying E. Jean Carroll is a liar and this didn't happen, the fact that you made a statement that said, by the way, I sexually assault women. Yeah. It's pretty damn good evidence for,
the credibility of three women who say, guess what he did? I mean, what's so hard to believe that he actually, when he said it, he wasn't joking. So it seems incredibly damning, but not damning because it's unfairly prejudicial. It is properly prejudicial. That's right. Because all relevant evidence is prejudicial, right? That's why you offer it. Of course. Because you're trying to prove something. Yeah. In fact, in order for it to be relevant, it has to make something more likely than not.
So I take it that this doesn't, to me, doesn't seem like a real appellate. You've got a really good district court judge. You have what's basically a factual determination by the jury. They were charged, I think, correctly. So it just seems a pretty weak determination.
to think that you're going to reverse this on appeal. Of course, you know, any good defendant, it's counsel, that's their obligation is to have an appeal and make any and all arguments, but it doesn't seem like that's going to go anywhere. I think the more interesting thing is something that you and I started to discuss, which is this is one of two E. Jean Carroll cases. You explained how this case sort of was brought to life by this new statute.
And Donald Trump, when he left the presidency, went ahead and defamed E. Jean Carroll again, which his lawyers had to be like, you've got to be kidding me, because he had a defense to the earlier case. The earlier case, he said, anything I said
about E. Jean Carroll was said as part of my job as President of the United States. Just get your head around that as an issue. But that took a lot of time to litigate, and it's now sort of in front of the same judge, and it could go to trial. And so there are a lot of open issues about whether E. Jean Carroll will want to do that. I mean, on the one hand,
She's had her day in court. If she said that she's there to clear her name and to show that she is right, she's done that. And it isn't about the money, but she did very well in terms of the money. Also, you know, she would put herself and people who were frantic.
friends or colleagues through all of this again because all of this evidence would happen again. So there's this whole process of re-victimization yet again. And so all of that has to weigh really heavily on her. But...
This is where the issue that this is now a good thing for our podcast, because we're going to talk about something called collateral estoppel. Right. And as I understand it, what if I would argue if I were going to go forward with this case and I represented E. Jean Carroll is I would say the fact of the sexual assault has been established and
And the reason you can argue that is because there's an identity of parties. It's the same plaintiff and the same defendant, and they had the same opportunity to litigate the issue. And there's been a finding with respect to that issue that there was a sexual assault. So that
does not get relitigated. Yeah, the reason that's important is because that earlier case, the one that's based on his alleged defamatory statement made while he was president, that case didn't involve a separate charge of battery because at that time that new law hadn't been passed.
And if the case were going to go to trial to prove it's defamatory means you have to show there was actually a sexual assault because otherwise there's nothing that he was lying about. So that's the key here. If he doesn't get a chance to, we don't think, to challenge that again in front of another trial because he's basically bound by what this jury already found. So in many ways...
you could do this case, but you might be able to sort of narrow the issues that a jury would actually need to find. So you really would just be talking about the president and what he said and what his intent was at that time. But it's sort of putting more him on trial than having to have the women go back on trial again. But it'll be interesting to see. Yeah, except she would still have
to show about how harmed she was from it, right, in order to get to the damages piece. And that's where you relive a lot of the trauma going through how it's affected your personal life. So we will have to see what happens. And, you know, there's no question there's a case there to be made, but I would not be at all surprised, having worked with victims of sexual abuse for many years, if she says, look, I've had my day in court.
I reclaimed my name. I'm not going to put myself or my friends through this again. Absolutely. It's like, you know what, you won. And, you know, there's no, you don't need to kill the lily. Go out on a win. Exactly. So speaking of which, what is so remarkable is that the first case that has really held Donald Trump to account is a civil case. It is a civil case, obviously involving one of the most
egregious personal acts of violence, but it took and takes the courage of individual women and very tenacious lawyers to put this together. And, you know, we will see whether they are matched by the same tenacity by
criminal prosecutors. Obviously, we've seen that with respect to Alvin Bragg, and we'll see whether that happens with Fannie Willis, who we talked about, it feels like a year ago, but I think it was yesterday. And also with Jack Smith. I want to just maybe end with one point and maybe get your take, Mary, on it, which is, as my friend Ryan Goodman has pointed out, that in 2017, Quinnipiac did a poll of
And they asked in November of 2017, which admittedly is a different time, but they asked the question whether Donald Trump should resign as president if it was shown that he committed sexual harassment. That's less than sexual assault. And 61% of the people said he should resign the presidency.
So, it'll be really interesting to see how this plays out with the electorate, how it plays out with the Republican Party in terms of how they deal with the former president
being held to account, where he is now facing 34 felony counts in Manhattan. He has been found liable of sexual assault and defamation, with three women being found credible in a courtroom by a jury of nine people.
So it'll be really interesting to see sort of the big picture of this, of how it affects the electorate. So many of the other cases are being called political, but this at bottom, you know, this is a sexual assault and it's in a very different bucket and it's quite possible Americans will think about it differently. Mary?
Thank you so much for jumping on air with me and covering this. We'll see you next week, unless, of course, there's more breaking news. But until then, take care. You too, Andrew.
Thanks so much for listening. The senior producer for the show is Alicia Conley. The audio engineer this week was Bob Mallory. Our technical director is Bryson Barnes. Jim Maris Perez is the associate producer. Aisha Turner is an executive producer. And Rebecca Cutler is the senior vice president for content strategy at MSNBC.
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