Day Two

"I'm here because I was assaulted by Donald Trump, and when I wrote about it, he said it never happened. He lied. And he shattered my reputation."

E. Jean Carroll, testifying in court on Wednesday.

Imagine if, seven years ago, anyone in the Republican Party had possessed the courage and integrity of E. Jean Carroll. Imagine if they’d been as brave as she is as disclosures about his character were made when he was running in 2016, when he began separating babies from their mothers at the border during his first year in office, or when we learned he’d withheld security aid from Ukraine to try to get a fake story to use against his political opponent, Joe Biden. If E. Jean Carroll had been a Republican Senator on January 6, she would have rallied her colleagues to call an insurrection an insurrection, expel the man who fomented it, and ensure he could never hold government office again.

But they did not have her courage, and here we are, watching a smart, brave, beautiful woman speak truth to power at a great personal cost. I am, as many of you know, possibly biased in her favor. We are friends. She is the kind of friend who never lets you feel down about yourself because she can always find strengths to praise. She helps you see the good in yourself. So I hate that she’s going through this again.

But I’m also grateful for her fearless leadership and for her willingness to testify in front of the man who assaulted her many years ago and demeaned her as ugly and not his type (even though he misidentified a photo of her at the time as his second wife, Marla Maples). Many people with far more power and resources than E. Jean Carroll have been afraid to speak the truth where Donald Trump is involved.

Yesterday, based on opening statements, I suggested that Trump’s lead lawyer, Alina Habba, might be in over her head. Her opening was inartful, emphasizing the established fact that Trump sexually assaulted E. Jean Carroll instead of refocusing the jury on the only issue that might help her client, whether Carroll’s damages can be properly attributed to him. While it’s not a very good argument—the first jury found against Trump and awarded Carroll $5 million—it’s the hand Habba was dealt, and she was off the mark.

Today, her lack of courtroom experience was on full display. She failed to stand when addressing the Judge, and she failed to take her seat after he ruled—that’s the stuff of trial advocacy 101. She whiffed on the basics of the Federal Rules of Evidence repeatedly. She complained again about the way the Judge spoke to her.

I don’t recite this litany to criticize Habba, although an important part of being a lawyer is understanding your limits and staying in your lane. Instead, I think her capabilities help us understand that Trump, who as a former president should have access to the finest lawyering the profession has to offer, does not. He is so toxic that most of the good lawyers won’t touch him. It’s shocking that a former president is represented by a lawyer who doesn’t seem to know her way around a courtroom and continues to antagonize the Judge by violating his pre-trial rulings, especially since the lawyer on the other side is Roberta Kaplan (no relationship to the Judge), an A++ caliber lawyer.

As a lawyer, you don’t win an argument in court with a judge about how he should run his courtroom. He holds all the cards. You say, “Thank you, your honor.” You move on. You hope to live to fight another day. You don’t, under any circumstances, say, “I don’t like to be spoken to that way, your honor,” as though this is high school, and you’re dismissing the girls who aren’t cool. Habba’s display is embarrassing. Someone with her level of experience should be practicing under the supervision of a mentor or a senior partner who can help her get these kinds of things right. But she’s the counsel Trump has.

Probably the worst part of Habba’s day was when the Judge finally took pity on her inability to abide by the rules of evidence and schooled her on how to question the witness about a document, like a law professor teaching a first-year student.

It was long, and it was painful. Habba didn’t score points with the jury. And poor E. Jean Carroll will have to return to the witness stand for more of it tomorrow because Habba’s progress was so slow that she’s not yet done with cross-examination. It will continue tomorrow.

Trump was in the courtroom today. That’s his right. But his presence was more toddler-in-tantrum mode than presidential. Trump’s behavior this morning—making remarks that were audible to the jury and slamming the table when he didn’t like Carroll’s testimony—probably crossed the line. But because this trial is short, and there’s no reason to believe Trump would behave any better in a second trial, the Judge most likely just wants to get it done. He’ll try to get the case across the finish line unless Trump gives him no option.

And Trump seems intent on trying to go there. Carroll’s lawyer complained about his repeated misbehavior and the following exchange took place out of the presence of the jury:

“Mr. Trump, I hope I don’t have to consider excluding you from the trial. I understand you’re probably eager for me to do that.”

Trump: “I would love it.”

“I know you would like it. You just can’t control yourself in this circumstance, apparently,” Kaplan responded.

“You can’t either,” Trump muttered.

Trump doesn’t seem to realize that the Judge is setting him up for removal if he continues to be disruptive. And while it’s less likely to happen here because of the timing, Trump’s behavior is a real heads-up for the judges in the criminal cases that are coming.

Even in a criminal case, defendants don’t have an absolute right to be present in court. The Federal Rules of Criminal Procedure provide some exceptions. They authorize the removal of a defendant who continues to engage in disruptive behavior after being warned he will be removed from court if it continues. See the (c)(1)(C) provision below.

There’s a process for doing it. A judge who determines that the defendant is being disruptive stops the proceedings, excuses the jury, and advises the defendant, much like Judge Kaplan did today, that his behavior is disruptive and that if it continues, he’ll be removed from the courtroom. The judge gives the defense attorney an opportunity to be heard and makes a record regarding the defendant’s conduct. The judge gives the defendant a chance to consult privately with his attorney to make sure he understands what is required of him. But then, if the defendant continues to be disruptive? The judge can remove him from the courtroom.

To protect the defendant’s rights, he can be placed in a special room with equipment that lets him observe the proceedings, with an opportunity to communicate with his attorney as needed. But much as a defendant has a right to a fair trial, the public is entitled to one too, and the rules expressly authorize a judge to remove a defendant who can’t abide by the rules.

Some people have opined that Trump’s behavior is a political stunt. Perhaps. But he has a lot of money on the line here. Antagonizing the jury doesn’t seem like the best of choices, if he wants to limit his exposure on punitive damages. Perhaps Trump lacks the acumen to appreciate that in their closing arguments, Carroll’s lawyers will lob every instance of his in-court misbehavior back at him and ask the jury to figure out what amount of money is high enough to make the self-proclaimed billionaire stop it.

There is no formal limit on how much the jury can award in punitive damages, but they can see and probably hear his theatrics, and that is probably pushing that number up. Juries don't reward this kind of behavior in defendants. If this is how Trump behaves in the criminal cases, it bodes poorly for him there.

E. Jean Carroll has continued to speak truth to power throughout. She’s done that despite the consequences, the fear of reprisal from Trump’s followers, in a way that should make every Republican official who has bent the knee ashamed of themselves.

“I felt worthless,” she testified, talking about how she felt when Trump belittled her and laughed off her accusation of sexual assault for all the world to hear. Well, she’s not worthless. It turns out she’s the best and bravest of us.

We’re in this together,

Joyce