Trump Imitates Harvey Weinstein Argument in Sex Abuse Appeal

On Friday, attorney D. John Sauer is scheduled to appear in a federal appeals court in Manhattan, where he will challenge a 2023 jury verdict that found the former president liable for defaming and sexually assaulting writer E. Jean Carroll. The judge overseeing the trial later concluded that “Trump ‘raped’ her, as many people understand the word ‘rape.'”

Before a three-judge panel of the Court of Appeals for the Second Circuit, Sauer will argue that the jury in Carroll’s trial should never have heard evidence about other alleged sexual assaults.

That evidence included the Access Hollywood “grab ’em” tape and the testimony of two women who told jurors that Trump sexually assaulted them, one on a plane in the mid-1970s and one at Mar-a-Lago in 2005.

It was a strategy that worked for Weinstein on appeal.

In April, the New York State Supreme Court overturned Weinstein’s 2020 Manhattan sex crimes conviction in a 4-3 decision, ruling that the judge had improperly allowed testimony from three accusers who were not part of the indictment. (Weinstein remains jailed in New York awaiting a new trial; he is separately serving a 16-year sentence for a rape conviction in Los Angeles, (which he also appeals to.)

But the lawyers who won Weinstein’s appeal told Business Insider that what worked for their client likely won’t work for Trump.

That’s because Weinstein’s jury was sitting in a New York state criminal court, where old rules of evidence strictly limit evidence of prior bad behavior, the disgraced Hollywood mogul’s lawyers noted.

Federal court is a very different place, they said. Trump will likely find the rules of evidence stacked against him there.

“It’s not an apples-to-apples comparison,” said Barry Kamins, a lawyer for Weinstein and a former Brooklyn Supreme Court justice.

Under federal procedural rules, evidence of other forms of sexual abuse has been allowed to be heard in civil sexual abuse lawsuits since the mid-1990s, said Kamins, who is now in court. Aidala, Bertuna and Kamins.

“It’s funny, but Trump would have been much better off in state court than in federal court, which is probably why they filed the case there,” Kamins said of Carroll’s attorneys.

The architect of the law Carroll used to file a lawsuit against Trump agreed.

Marci Hamilton, who heads the sexual abuse survivor advocacy group Child USA and helped draft the law in New York, says that in civil cases, witnesses are allowed to testify to “show a pattern.”

“That’s basically what happens — especially when you have an offender with multiple alleged victims,” ​​she said. “That pattern makes a huge difference in explaining to the jury who exactly this person was that did this and how they went about it.”

Trump’s lawyers use the Weinstein argument

The appeal was filed in the first of Carroll’s two lawsuits against Trump, a case she brought under New York’s Adult Survivors Act.

The law, passed amid reports of Weinstein’s sexual predation and the #MeToo movement, opened a one-year window during which prosecutors could bring sexual misconduct lawsuits that otherwise would have been barred by the statute of limitations.

Carroll accused Trump of sexually assaulting her in the mid-1990s in a Bergdorf Goodmans department store fitting room. The trial included damning testimony from Carroll herself, and from two friends who testified that she had simultaneously told them that Trump had sexually assaulted her.

U.S. District Judge Lewis Kaplan also allowed testimony from Jessica Leeds and Natasha Stoynoff, whose allegations were not part of the lawsuit.

Leeds described being violently groped on an airplane 20 years before Trump sexually assaulted Carroll. Stoynoff, a journalist, described a similar attack during an interview at Mar-a-Lago. That attack occurred in 2005, she testified, 20 years after the attack on Carroll and around the time Trump bragged about grabbing women by the genitals on the “Access Hollywood” tape.

Similar testimonies led to the collapse of the Weinstein case.

The New York State Supreme Court has ruled that the prosecution’s witnesses who previously alleged sexual abuse, the trio who testified that Weinstein sexually abused them but whose allegations were not included in the indictment, should never have been allowed to testify.

In Trump’s appeal, his lawyers argue that the Leeds and Stoynoff testimonies and the Access Hollywood tape should never have been allowed into the trial, citing a federal rule similar to the state rule that thwarted the Weinstein prosecution.

In particular, the jury should never have heard the highly biased testimony from Leeds, in which Trump said she told her, “You’re that bitch from the plane,” and Stoynoff said Trump insisted “we’re going to have an affair,” Blanche and Bove argue.

Diane Kiesel, a New York Law School professor and former state judge, told Business Insider that she believed the evidence met the criteria to be included in the trial. The “Access Hollywood” tape and testimony from Leeds and Stoynoff helped demonstrate Trump’s “motive, intent and opportunity” in his meeting with Carroll, as allowed under federal rules of evidence, she said.

“The fact that E. Jean Carroll says, ‘He did this to me at Bergdorf’s.’ And he says, ‘You can do it to women anytime, they’ll let you do it,'” she said. “And then two other women come out of nowhere from 50 years ago and say he did the exact same thing — to me, I think it goes straight to the motive, the intent.”

Kaplan, the judge, wrote in his ruling that the evidence was also admissible in the trial under several federal procedural rules, including rules that allow testimony about “similar acts” in sexual abuse cases.

“As their testimony shows, Trump abruptly attacked a woman in a semi-public place, pressed his body against her, kissed her, and sexually touched her without her consent. He later categorically denied the allegations, stating that the accuser was too unattractive to have assaulted her,” Carroll’s lawyers wrote in a letter.

Civil cases like Carroll’s apply different standards

Friday’s trial will feature Carroll’s attorney, Roberta Kaplan, who oversaw two verdicts in Carroll’s favor. In the May 2023 verdict, the jury found Trump liable for sexual assault and defamation and awarded Carroll $5 million in damages. In the second trial, earlier this year, a separate jury found Trump owed Carroll an additional $83 million in damages for defamation.

Kaplan (who is not related to the trial judge) is taking on Sauer, who recently won a resounding victory for Trump at the U.S. Supreme Court, which upheld presidential immunity in the criminal interference case against him.

Trump’s best chance in Friday’s appeal may be to continue to maintain that the two other prosecutors who testified, Leeds and Stroynoff, described attacks that were far too far removed from Carroll’s assaultive behavior to be relevant, Weinstein’s lawyer Arthur Aidala said.

While federal rules of evidence for civil sexual abuse lawsuits are much more expansive, a judge still cannot go too far, he said.

“It must be reasonable and the court may take into account the time gap between the plaintiff’s statements and these ‘inclination witnesses’,” he said.

Crucially, the jury in Carroll’s case did not have to conclude that Trump sexually assaulted Carroll “beyond a reasonable doubt” — the standard in criminal trials.

Instead, they had to determine that it was “more likely than not” that Trump had sexually assaulted Carroll, a standard much more common in civil cases.

Even if the appeals court rules that some of the testimony during the trial should not have reached the jury, the standard still provides some latitude to uphold the verdict, said Hamilton, the architect of the Adult Survivors Act.

“It’s not uncommon in a civil case for defendants to try to use criminal law arguments to bolster their case,” she said. “But ultimately it’s just comparing apples and oranges. It’s not the same.”