Jurors Will Watch Trump Brag About P*ssy Grabbin' As He Tries To Convince Them He Would Never Grab A P*ssy
In a resounding victory for advice columnist E. Jean Carroll, US District Judge Lewis Kaplan ruled today that the "Access Hollywood" tape — oh, you remember it! — can be shown to jurors in Carroll's upcoming defamation trial against Donald Trump. The court further admitted testimony from Jessica Leeds and Natasha Stoynoff, two women who made sexual assault allegations against Trump which are strikingly similar to Carroll's account of being sexually assaulted by him in the '90s.
Normally, courts would exclude this type of "propensity evidence" — that is, evidence presented to prove that the defendant has a propensity to do the thing he's accused of. But under Rule 415 of the Federal Rules of Evidence, there's an exception for civil cases "based on a party's alleged sexual assault" allowing the admission of evidence that the defendant "committed any other sexual assault."
Reasoning that Carroll's defamation claim rests on the veracity of her rape allegation — she is suing Trump for defamation for calling her a liar in denying the assault — Judge Kaplan holds that Carroll's defamation claim is "based on a party's alleged sexual assault," and thus the tape and testimony are admissible.
In this case, a jury reasonably could find, even from the Access Hollywood tape alone, that Mr. Trump admitted in the Access Hollywood tape that he in fact has had contact with women's genitalia in the past without their consent, or that he has attempted to do so. And that conclusion is supported by the other evidence discussed below. Accordingly, the tape satisfies Rule 415 by virtue of Rule 413(d)(2) and (d)(5).
Last week, Trump's lawyer Alina Habba filed a truly bizarre motion to exclude the tape and the testimony of Leeds and Stoynoff. First, the "reply brief" was untimely — a big no-no — since the parties had already briefed the issue and the court's scheduling order did not permit another round of replies. And second, it was pretty, uh ... gross. For instance, the motion argued to exclude Leeds and Stoynoff's testimony since both women were able to fight Trump off before penetration, and thus no sexual assault occurred in the eyes of the law. This theory is based on this actual sentence from the brief: "Plaintiff fails to establish that there was an attempt to contact genitalia."
But really, if you're arguing about whether your client managed to make contact with an accuser's genitalia, you've already lost. Particularly when your client has famously been caught on tape about his habit of making contact with women's genitalia because he's "automatically attracted to beautiful" and "when you're a star, they let you do it."
The court could have excluded this evidence as prejudicial. Indeed, most observers (including yours truly) assumed that it would do just that. But weighing the probative value of the evidence against the chance that it will prejudice the jury against the defendant is a matter left to the court's discretion. And when you have made yourself obnoxious to the court, it tends not to grant you the benefit of the doubt.
Here, Donald Trump has spent close to four years being as obstreperous as possible. First he ducked the process server. Then he claimed to be immune to civil suits as president, and had the temerity to city the case of Clinton v. Jones in support of his claims. (Let me save you the trouble of Googling: Bill Clinton was not immune.) Then he claimed that New York state court had no jurisdiction over him as a Florida resident. Then he had Attorney General Bill Barr remove the case to federal court on the theory that he was just doing his official presidential duties when he implied that Carroll was too ugly to rape. Then he refused to comply with discovery. Then he repeated the allegations about Carroll on Truth Social, resulting in a second defamation suit. Then he made a big public show of offering to submit to a DNA test after discovery was closed. And all the while, his lawyers took a hyper-aggressive posture, spamming the docket with stupid filings like the one last week, even as they accused Carroll and her lawyers of acting in bad faith.
There is literally nothing Trump and his attorneys could have done to piss off this judge more. And so they find themselves, on the eve of trial, with zero goodwill left and and a tremendously disadvantageous ruling.
You hate to see it.
[Carroll v. Trump I, Docket via Court Listener / Carroll v. Trump II, Docket via Court Listener]
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.