The Week Ahead

April 30, 2023

Saturday night at the White House Correspondents’ Dinner, comedian Roy Wood Jr. looked over at President Biden and quipped, “We’ve gotta get Tucker back on the air, Mr. President, because right now there are millions of Americans who don’t know why they hate you!”

(I’m sure they’ll continue to find reasons, though.)

I continue to take heart from the return to the tradition of having the president in attendance at the dinner. Trump didn’t attend while he was president. The third time he passed, he held a rally and said, “I’m going to hold a rally… Yeah, because the dinner is so boring and so negative that we’re going to hold a very positive rally.”

But Biden is back. He braved last year’s dinner despite an uptick in Covid (the dinner turned out to be a superspreader event), even though he only spoke for 15 minutes. This year, he was there full force, concluding his remarks by assuming the superhero mantle of Dark Brandon and owning MAGA for its attempts to use that name to belittle him.

Yes, the dinner has its origins in smoke-filled rooms where an exclusive club of white men rubbed shoulders and toasted their prestige and position. It’s still a notable statement about the health of our democracy when the president attends. It means the leader of our country is not some sort of sacrosanct figure, but an American who is willing to subject himself to the sometimes painful ridicule of comedy in front of a room full of members of the media, and on cable and social media, the entire country. They mean something, these small moments of normalcy in a still-fragile democracy. I celebrate the signs of stability, even—maybe especially—the small ones, like the nerd prom.

But there was also a serious side to Biden’s comments. “Tonight our message is this,” Biden said: “Journalism is not a crime,” referring to Wall Street Journal reporter Evan Gershkovich, who has been held in Russian captivity for over a month. Russia alleges he’s a spy. The Journal and the President say that’s not true. That too, protecting the press, is an important sign of stability. I hope we’ll have news about progress towards freeing Gershkovich in the week ahead. We’ll keep our eyes on this story for as long as it takes.

This week, the jury in the Proud Boys case will continue to deliberate. It’s likely we will have a decision from them by the end of the week. I say that knowing it can be dangerous to try to predict what a jury will do, but this jury got straight to work, and I would not be surprised to see them finish up by Friday, although they are entitled to take as long as they want to deliberate.

E. Jean Carroll’s defamation and battery lawsuit against Donald Trump continues this week as well. Carroll returns to the witness stand for more cross-examination Monday morning. Her lawyers will have the opportunity to conduct a “redirect” examination after Joe Tacopina, Trump’s lawyer, finishes. Redirect is used to clarify any answers a witness gives on cross-examination that the plaintiff wants to clean up.

After Carroll’s testimony concludes, the jury will hear from four important witnesses, all women. They will take center stage to help Carroll establish the truth of her allegation that Trump raped her in the mid-1990s.

Two women will testify that Trump sexually assaulted them: Jessica Leeds and Natasha Stoynoff. Leeds says that in 1979, Trump assaulted her when they were seated next to each other on a flight. She says he grabbed her breasts, tried to kiss her and put his hand up her skirt. Stoynoff was interviewing Trump for People magazine in 2005 when she says he grabbed her, pushed her against the wall and started kissing her. She says that later he groped her. Although Trump tried to prevent this testimony, Judge Lewis Kaplan ruled it was admissible under the plain language of Federal Rule of Evidence 415, which provides that, “In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation.”

Judge Kaplan has also held, again under Rule 415, that the Access Hollywood tape can be introduced. Trump was caught saying, “You know, I’m automatically attracted to beautiful… I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything… Grab them by the pussy. You can do anything.” The jury will be instructed that under Rule 415, they can use this evidence to make a decision about “any matter to which it is relevant.”

Expect Trump’s lawyers to object throughout as this evidence is introduced. These rulings, which enhance the credibility of Carroll’s testimony and damage the credibility of Trump’s denials—especially the words the jury will hear out of his own mouth—will play a critical role, and if the jury convicts, Trump will challenge the judge’s decision to admit this evidence on appeal.

In addition, two witnesses, Carol Martin and Lisa Birnbach, will testify that Carroll told them of the rape shortly after it occurred, and that her account has been consistent over the years. They are what is called “outcry witnesses”—witnesses a rape victim told her story to contemporaneously even though she didn’t call the police. Martin, a highly respected voice in local news, was the first African-American female local news anchor in New York, hosting daily WCBS newscasts from the 1970s until 1994. She discouraged Carroll from going to the police, out of practical concerns that Trump would destroy her reputation and her career—which advice turns out to have been spot-on. Birnbach, a successful writer, is the author of The Official Preppy Handbook. Like Martin, she has remained friendly with Carroll. Expect these witnesses to be highly persuasive before the jury. Both women are strong and successful, and they are unlikely to be distracted from their testimony by what’s sure to be aggressive cross-examination by Tacopina. Both came forward to support Carroll when she decided to tell her story.

At the end of the trial, the judge will dismiss the three alternate jurors, leaving nine to deliberate. Carroll is seeking unspecified damages for pain and suffering, psychological harm and invasion of privacy.

Will Trump testify? Not if he’s smart. But you never know with Trump. He may be unable to resist the allure of center stage and a microphone. Given a less-than-stellar performance in his deposition where he misidentified a photo of Carroll, who he had said was not his type, as his second wife Marla Maples (who he testified was), it’s hard to imagine anything productive happening with him on the witness stand. Unless there is a holdout juror for some reason, it seems likely that the issue the jury will struggle with in their deliberations will be what amount of damages is warranted, and not whether or not Trump did it. Because the burden of proof in a civil trial is the preponderance of evidence, not guilt beyond a reasonable doubt as in a criminal case, the evidence Carroll is going to present seems likely to be sufficient unless something unexpected happens.

Also this week, Montana’s first transgender state representative, Democrat Zooey Zephyr, who has been banned from the House floor for violating “decorum” will continue her fight to represent her constituents. Excluding a duly elected representative from the House because the Republican supermajority doesn’t like her comments violates both Zephyr’s First Amendment rights and the rights of the people who elected her to represent them. Expect Zephyr to go to court promptly, because the session ends at the end of the week and the legislature will not reconvene until 2025. So it’s this week or nothing if she wants the courts to come to her aid.

Here is her statement following the decision to ban her. On Twitter, she pledged to defend her constituents, community, and democracy itself.

Also, there’s more reporting on ethical issues at the Supreme Court. These newest reports involve the Scalia Law School at George Mason University in the metro Washington, D.C., area.

We are clearly past the point where any sensible person could maintain that the Justices are capable of policing their own ethics. The difficulty comes in determining how ethics rules are going to be put in place that bind them. The Justices are free agents when it comes to ethics. That became crystal clear when Clarence Thomas refused to recuse from the case regarding Trump’s efforts to block turnover of his materials to the January 6 committee despite the role his wife Ginni played in trying to keep Trump in office. Thomas was the “1” in an 8-1 split vote in that case—a case he had no business sitting on. Justices, like all judges, are required to avoid not just actual impropriety, but even the appearance of it. That Court doesn’t seem to grasp or take seriously how deep the gap in the public’s confidence in them has become.

The New York Times reported on Sunday that they had obtained a memo that circulated internally and confidentially at Scalia Law, that said, “Establishing and building a strong relationship with Justice Gorsuch during his first full term on the bench could be a game-changing opportunity for Scalia Law, as it looks to accelerate its already meteoric rise to the top rank of law schools in the United States.” Meteoric is correct. The law school started as a unaccredited school in 1972 before it merged with George Mason in 1979 and finally won accreditation in 1986, but remained lesser-known. In 2016 the school obtained a large naming gift and became the Antonin Scalia School, named for the then-Justice. Today it’s ranked as tied for 30th among American law schools in U.S. News and World Report’s ratings. In 2021 it was ranked 42nd.

The Times report explains, “By the winter of 2019, the law school faculty would include not just Justice Gorsuch but also two other members of the court, Justices Clarence Thomas and Brett M. Kavanaugh—all deployed as strategic assets in a campaign to make Scalia Law, a public school in the Virginia suburbs of Washington, a Yale or Harvard of conservative legal scholarship and influence.” While the school’s rankings growth may be unprecedented, it’s not an indication than anything improper is at work. Scalia’s dean, Ken Randall, went to the school from the University of Alabama, where he was a transformative leader who pulled the school (which I now teach at) into the top-30 ranked schools.

So be careful as you assess these new allegations. Not everything some might find distasteful violates judicial ethics. It’s certainly nothing new for a judge to teach at a law school and receive payment for it, although Scalia Law’s resources make both the salary (Justices can accept up to approximately $30,000 in outside income) and the work-related travel, which is reportedly cushy, top-tier. As long as the Justices report their relationships so litigants can assess conflict issues, and the Justices stay within legal guidelines for outside income, an argument can be made that nothing here is objectionable.

But that doesn’t take away from the ongoing problem with the Court’s lack of enforceable ethics rules. It’s not an issue of politics, it’s one of institutional integrity. Lacking an army to enforce its decision, the Court would do well to consider taking strong steps to restore the public’s confidence, whatever that takes. That may require some concessions from the Justices that they apparently are hesitant to make. A letter signed by the nine Justices saying “trust us,” like the one Chief Justice Roberts sent to the Senate Judiciary Committee in lieu of testifying last week, isn’t going to do the job at this point.

Another full week ahead of us!

We’re in this together,

Joyce