WHY TRUMP DID NOT TAKE THE STAND TO DEFEND HIMSELF
E. Jean Carroll won her civil lawsuit against Trump for sexual violation and defamation. The jury of 6 men and 3 women was unanimous and returned their verdict after only 2 and a half hours of deliberation–which is incredibly rapid for any jury verdict. The jury determined that Trump must pay Carroll a whopping 5 million dollars. Trump lost biggly.
Litigants in civil cases have the option to avoid showing up in person. Sometimes even defendants in criminal trials are tried in absentia. That can happen if the defendant is disruptive, for example. Showing up in the courtroom in this case might have helped Trump with this jury. By absenting himself the jury must have felt some level of annoyance, after all, THEY HAD TO SHOW UP! Counsel for E. Jean Carroll was allowed to draw a negative inference from Trump’s absence.
Trump did not attend the trial. Like any defendant in a civil case, he was not required to appear in court for trial or any proceedings and has a right not to testify in his own defense. Carroll’s attorneys told the jury at closings that they should take Trump’s absence from court as a sign of culpability.
To prevail, Trump needed the jury to believe that E. Jean Carroll was making up her story about him. He needed to convince the jury that she was lying. With Trump absent, the jury saw Trump’s deposition. In the deposition he misidentified a woman in a photograph he was shown. He was certain that the woman in the picture was his former wife, a very attractive blond, Marla Maples. E. Jean Carroll DID look a lot like Marla Maples back in the day. But it was not Marla in the photo. It was E. Jean Carroll. Trump was wrong. After the jury heard Trump claim that he would never have raped or sexually assaulted Carroll because she was “not his type”, his misidentification of the woman in the photograph as his wife who WAS his type proved that at the time of the assault that Carroll absolutely WAS his type. In other words, Trump was lying about his attraction to E. Jean Carroll. Carroll was telling the truth.
That was just part of the brilliantly spun narrative by Carroll’s attorneys. They also presented the testimony of what are called outcry witnesses- women that Miss Carroll had confided in after the assault. One spoke convincingly about what Carroll told her when the assault happened in the Bergdorf Goodman dressing room. Another talked about her experience with Trump when he attacked her in a similar way, revealing Trump’s modus operandi. Trump’s M.O. was also established by the Access Hollywood tape which was played for the jury. In a way, Trump convicted himself with his own words by exposing his thoughts about celebrities getting to grab women by the “pussy” and then enacting that behavior over and over.
Why didn’t Trump show up for this trial? Why didn’t he take the stand to tell his side of the story? That might possibly have helped him convince some members on the jury of his innocence, although it was a very strong case that was destined to be a win for Miss Carroll based on the evidence that they presented and the fact that this was not a criminal case which requires a higher bar.
Some have said that maybe it would have been useless for Trump to testify. The case was that strong. But I think there is another reason he did not show up for this trial:
Trump’s last clear chance to stay out of prison is to get elected president again and to do that he has to portray himself as the archetypal strongman for his base. That’s because the base that will eagerly vote for him in primaries, giving him his only chance to be president again, wants to vote for someone who fulfills their fantasy image of a leader who is the biggest baddest a–hole out there. A guy who gets what he wants and don’t take shit from nobody. They demand nothing less from their cult leader.
THE IMAGE IS EVERYTHING
Brutality is the point. Meanness is the point. Dominance is the point. Sexual assault is perfectly ok because white men should get what they want. Grievance and outrage are what happens when they don’t get their way. Women are chattel to them. They deserve to be used and abused, told what they can and cannot do with their bodies. This group of Americans want to return our country to the good ole bad ole days when women knew their place and white guys were powerful and always right with special rules that only applied to them to get them off when they broke the rules. Trump stands for all of that and embodies it in his Make America Great Again rhetoric, his attacks on the press and his strong man image.
If Trump had taken the stand in his defense, he would have looked weak. He would have looked like the liar he is. He would have damaged his strong man image. Why? Because he would have said it never happened and then been subjected to a withering cross examination by the attorney representing E. Jean Carroll, a WOMAN. She would have ripped him to shreds. That would have damaged his portrayal of himself as the strong, unrepentant bad dude who will stand up for the rights and power of white men come hell or high water. In other words, testifying would have damaged his chances to stay out of prison.
This was also a civil case, not a criminal case. No matter what happened with this verdict Trump would not be incarcerated he would just have to pay money. Given the belief system of his base, it would actually benefit Trump to lose. This outcome gives him more to be aggrieved about and allows him to fundraise off of his angry, outraged base of low education whiny older white guys who are a bunch of snowflakes when you get right down to it, all upset about the changes in our culture they are afraid of including uppity women and uppity Black people.
THIS APPEAL WILL GO NOWHERE
Trump will appeal this verdict but the appeal will not succeed because the basis for appeal is very weak. Appeals are very hard to win. Judges don’t like to be reviewed by higher courts and have their decisions be overturned. It looks bad for them. Most trial court judges are careful about their rulings during the trial with an eye to how their decisions will be seen on appeal. For that reason I found when I worked as a prosecutor that trial court judges tended to be fairly tolerant of defense tactics and erred on the side of the defendant in their rulings. This was not a criminal case but the judge bent over backwards to be fair to Trump, even re-opening the case after it closed in the event Trump changed his mind and wanted to get on the stand and testify after the weekend. (He didn’t.) For Trump, the appeal is also a way to buy time. His goal is to wrangle himself back into the power and protected status of the presidency. Presidents cannot be indicted given the interpretation of the OLC opinion about sitting presidents being untouchable. Remember Mueller gave that gift to Trump. Regaining the presidency has become Trump’s North Star.
In short, Trump could not take the stand because of the risk to the image he has to maintain to win primaries to be chosen as the Republican nominee.
CNN TOWNHALL HELPS TRUMP WITH HIS IMAGE AS AMERICA’S WANNABE DICTATOR
Trump’s goal to portray himself as the perfect future dictator of America was in full view in his recent CNN townhall. He ran roughshod over Kaitlin Collins and didn’t back down on any position that could earn him the votes of his base. Ok, there was some wiggling about whether he would go for a national abortion ban. But he never answered that directly. He waffled saying he would make everyone happy with the abortion policy he would impose on the country. He called for Congress to go ahead and default on the debt. That sounded tough but doing that would trash our economy, allowing Republicans to blame Biden. for the resulting disastrous economic fall out. Never mind that it was the Republican House that pulled the pin that blew up the economy. In the town hall Trump was pumped up by his people during the commercial break. They told him what AOC and other progressive were tweeting about him –how the townhall was a disaster and Trump was unapologetic and worse than ever. That caused Trump to become even more brazen. He got back out there in the limelight for round 2 and was even more domineering and authoritarian.
HOW TRUMP COULD WIN THE PRESIDENCY AGAIN
For anyone who thinks that Trump could not regain the presidency, think again. Republicans are hard at work changing the rules, very quietly now, under the radar, instead of publicly, to make it harder for Democrats and young people to vote in states with Republican led state legislatures. See the New York Times article: https://www.nytimes.com/2023/05/08/us/politics/voting-laws-restrictions-republicans.html And harder for groups to canvass and get out the vote without running afoul of the law.
In addition, the Supreme Court has not yet issued its ruling in the Harper v Moore case out of North Carolina which I have written about before. That is the case that could upend our democracy depending on how much power the Court confers on state legislatures.
In a worst case scenario, the Court could confer massive power on state houses to have total control over how they handle presidential elections. If the Supreme Court reallocated that power to state houses it could allow red state legislatures to alter their laws to enable them to gerrymander at will and also use unsubstantiated allegations of election fraud as a bomb to blow up the election if they don’t like the choice for president made by voters in their state. Sound familiar? That was the John Eastman playbook, as you might recall.
Trump and his cronies were trying to implement that strategy in 2020 relying on a tortured reading of the Constitution. They failed to accomplish their goal then. What they did then broke the law. But if the Supreme Court reallocates massive power to state houses that goal could be realized and this time it would be legal. If a red state has a Democratic governor like Governor Evers in Wisconsin, the legislation would be vetoed. But if the state house has a GOP super majority, the legislature could override the governor’s veto.
The United States is a representative democracy. This means that our government is elected by citizens. Here, citizens vote for their government officials. These officials represent the citizens’ ideas and concerns in government.
Depending on how the Court rules in Moore, it could result in a shift in power that could be the end of our representative democracy. I am not overstating this. There are currently just enough states with Republican led state houses that might be willing to rewrite their laws to engage in that violation of our democracy if it meant Trump (or De Santis) would become the president in 2024. It wouldn’t be a power grab anymore. It would be done legally thanks to the 5 extremist justices put there by the Federalist Society and Donald Trump. The Court would rely on a twisted reading of the infamous state legislative theory in the Constitution to green light such a shift in power. The coming decision in Moore will tell us to what extent this Court is in bed with the goals of GOP Christian Nationalists, the white power movement and the effort in our country to install an autocrat or dictator.
The Supreme Court will be making this momentous decision any day now. We must hope that Roberts, and/or Amy Coney Barrett hold out against Alito, Thomas, and Gorsuch when they decide this case because they understand that the American people and history as well as our global allies will never forgive them if they blow up our representative democracy by letting GOP led state legislatures defy the will of the voters.