Flashback: The rape case that started at a Resistance party
Byron York
FLASHBACK: THE RAPE CASE THAT STARTED AT A RESISTANCE PARTY. The lawsuit accusing former President Donald Trump of rape, Carroll v. Trump, goes to the jury Tuesday. Maybe the decision will be quick, and maybe it won’t. In any event, it is important to remember that the accuser, former Elle writer E. Jean Carroll, does not have to prove that anything happened about 27 years ago, when she said Trump attacked her in the dressing room of a tony New York department store. All Carroll has to do is convince the New York-area jury that the assault more likely than not happened. It’s a far lower standard than a criminal charge of rape. And even that charge, in a lawsuit, could not have been brought without New York’s one-time-only #MeToo law, allowing people who said they were victimized many years ago but never brought charges to take action against the person they say attacked them. If you haven’t been following Carroll v. Trump, it is, given that it involves Trump, a highly politicized affair. Here, from last month, is the background of the case, including some things the judge in the trial made sure the jury was not told about.
Jury selection began on April 25 in a lawsuit brought against Trump by Carroll, who says Trump raped her sometime in 1995 or 1996. Carroll, now 79, cannot remember which year it was, but at a minimum, the alleged attack took place about 27 years ago.
Although she says she told two friends about it at the time, the writer Lisa Birnbach and the New York television newswoman Carol Martin, Carroll did not report the alleged crime to any authorities. She did not tell anyone else. Years passed. The statute of limitations for a rape charge came and went. Even when, 20 years later, Trump ran for president and other women accused him of sexual misconduct, Carroll remained silent.
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Carroll says she did not speak up because her elderly mother, a longtime Republican, was ill and Carroll did not want to set off a distracting controversy. She also worried that accusing Trump might actually help his campaign in some key states in the 2016 election, and she most certainly did not want to help Trump win. So for personal and political reasons, she remained silent.
Carroll has said her mind changed in late 2017 when the powerful Hollywood producer Harvey Weinstein was accused of sexual assault. The #MeToo movement began and gathered steam. To Carroll, it “suddenly seemed possible that even Trump could be held to account,” her lawsuit says.
Yet even then, Carroll did not speak out. It was not until 2019 that Carroll publicly accused Trump, who by that time was president of the United States. Why in 2019? Because she had a product to sell. In the spring of 2019, Carroll began a promotional tour for a book in which she described what she says Trump did to her. As part of the promotion, in the run-up to the book’s publication, Carroll appeared on the cover of New York magazine wearing the same dress she says she was wearing when Trump allegedly attacked her in a dressing room at the New York department store Bergdorf Goodman more than two decades earlier.
Carroll has said she broke the news in a book because she did not want to tell the police or an elected official or a journalist what had happened. Perhaps that is the case. It is also true that writing a book, unlike going to the police, was a way to make money while making news. And in this case, it was a book with a spectacular allegation. In any event, the rape that allegedly happened in 1995 or 1996 did not become public until 2019, when New York ran an excerpt of Carroll’s new book.
The excerpt was titled “Hideous Men,” and the book was What Do We Need Men For? A cover blurb called it the “most bitterly funny, fantastically furious book to explode out of the #metoo moment.” As part of her promotional efforts preceding publication, Carroll used Trump’s fame and notoriety to start a new career in what might be called the Hideous Men business.
For a fee, Carroll conducted what she called the “Most Hideous Men in NYC Walking Tour,” in which she led a tour group on a 90-minute walk around some of the city’s #MeToo landmarks. The tour began at Bergdorf Goodman’s 58th Street entrance — precisely the place where Carroll said she first encountered Trump on the awful day he attacked her. But Carroll conducted the tours in the weeks and months before she revealed her rape accusation against Trump, which made the Bergdorf stop a little odd. Why start at the place where Carroll said Trump raped her when that alleged rape was still a closely held secret?
In addition, Carroll’s friend Birnbach, who confirms that Carroll confided to her about the alleged rape in 1995 or 1996, wrote a puff piece about Carroll’s tours in the New Yorker. Birnbach’s account described Carroll leading the tour group to Trump Tower, where Carroll said, “Twenty-three women have come forward to say that President Trump tried to ogle, touch, grindy-grindy, grabby-grabby, and worse with them. It is 24 women if we include Ivana, the mother of Don Jr., Eric, and Ivanka.” Of course, it would have been 25 if Carroll revealed that Trump had raped her, but neither Carroll nor Birnbach said a word. Everybody saved the secret for the book.
When Carroll unveiled the rape accusation — New York posted notice of the excerpt on Twitter on June 21, 2019, ahead of the book’s July 2 publication date — Trump reacted in a classically Trumpian fashion. He denied it all. He said he had “never met [Carroll] in my life.” He said she was “trying to sell a book — that should indicate her motivation.” Later, he said of Carroll, “Number one, she’s not my type. Number two, it never happened. It never happened, OK?”
Carroll later produced a photo of herself in a group with Trump at a party sometime in the 1980s. That was proof he had in fact met her before. He dismissed that as no big deal because it was a brief moment in time and he attended thousands of parties in the 1980s. He stood by and repeated the rest of his reaction to her allegation.
That is where things stood when Carroll, by then a darling of the anti-Trump Resistance, attended a party at the Manhattan home of another Resistance figure, the writer Molly Jong-Fast. The party was in honor of yet another Resistance figure, the comedian Kathy Griffin. Among those in attendance was still another Resistance figure, the lawyer George Conway. The gathering was, in the words of a New York Times account, “Resistance Twitter come to life.”
Conway was someone important for Carroll to meet. A high-powered lawyer, back in the 1990s, he had been part of the so-called elves, a group of lawyers who secretly helped Paula Jones sue President Bill Clinton for sexual harassment. By 2019, Conway was in a far different position. His wife, Kellyanne Conway, ran Trump’s campaign and went to the White House as a top adviser. For his part, George Conway was originally interested in a big job in the Trump Justice Department. Later, when that did not happen, he became virulently anti-Trump, so much so that he would be invited to a party for Griffin at Jong-Fast’s apartment. At that party, Conway became an elf all over again.
As the guests enjoyed themselves — the catering was by Momofuku and was said to be excellent — Conway persuaded Carroll that she should sue Trump for defamation. The idea was that when Trump denied having met her and then said she was making up the rape accusation to sell a book and then said she, Carroll, was not his type, that was all defamation. Carroll could sue Trump for that, and then, of course, the case would focus on whether the alleged rape actually occurred, so it would be like having a rape trial for Trump even though the statute of limitations was long passed.
Carroll said she had never been interested in suing Trump, but the talk with Conway convinced her. Conway even suggested a lawyer, Roberta Kaplan, who had co-founded a #MeToo legal defense nonprofit group called Time’s Up. Kaplan was apparently deeply committed to helping victims of sexual abuse but deeply committed to politics, too: In August 2021, she resigned from Time’s Up over sexual misconduct allegations against New York Democratic Gov. Andrew Cuomo. The problem was Kaplan was not standing up for victims but was “involved in an effort to discredit one of Mr. Cuomo’s alleged victims,” according to a New York Times report. The E. Jean Carroll case would be a mix of sex and politics but with a Republican villain.
Carroll sat for a deposition last October and was asked how the lawsuit came about. This is what she said:
Q: At what point did you decide to file a lawsuit against the defendant?
A: Well, wherever I went after the story, people said, ‘Are you going to sue him? Are you going to sue him?’ and I would say, ‘No, no, no, not going to do it. I’m just not.’ And then I had a conversation with someone who knew the ins and outs, an actual lawyer, and he said, ‘You should really seriously think about this.’
Q: Who was that lawyer without getting into the conversation?
A: George Conway.
Q: How did you meet George Conway?
A: Met him at a party at Molly Jong-Fast’s house.
Q: Was he your lawyer at the time?
A: No, no, no, no.
Q: So after you spoke to George, did you retain counsel?
A: Yes.
Q: How soon after?
A: The day after. The day — two days later.
Q: Did George recommend Ms. Kaplan?
A: Yes, he did.
A lawsuit was born. In November 2019, Carroll sued Trump for defamation. Trump, who had the protections of office as president of the United States, tried to get the suit thrown out. Legal wrangling ensued. Then two things happened that changed the case. First, Trump left office. Second, in 2022, the New York legislature passed what was called the Adult Survivors Act, which allowed people who said they were victims of sexual assault to sue their alleged assailants regardless of when the alleged attack occurred — even if the statute of limitations was long over. But the new law gave victims just one year to do it; that was called a “one-year lookback.”
The Adult Survivors Act went into effect on Nov. 24, 2022. Within hours, Carroll filed another suit against Trump. This time, she repeated the defamation charge and then added an allegation of battery under the Adult Survivors Act. So the trial beginning now will be about more than just defamation. It will also cover the facts of whether Trump committed battery against Carroll on that day in 1995 or 1996 — 27 years ago. It will not be a criminal trial, even if found responsible. Trump would not go to jail, but Carroll will seek significant financial damages.
She is also receiving financial support in the case, and no one should be surprised to learn it is coming from Resistance world. As part of the pretrial depositions, the news emerged that tech billionaire Reid Hoffman is bankrolling Carroll’s case. Like so many others involved on Carroll’s side, Hoffman is profoundly anti-Trump. He is also not afraid to push the envelope of anti-Trumpism; in 2018, he apologized for funding a group that secretly imitated Russian disinformation tactics in an attempt to benefit the Democrat in Alabama’s special election for the U.S. Senate.
Hoffman’s money has made some waves in the Carroll case because, in her October 2022 deposition, Carroll denied that anyone was paying her legal fees. Here is what Carroll said:
Q: Are you presently paying your counsel’s fees?
A: This is a contingency case.
Q: So you’re not paying expenses or anything out of pocket to date. Is that correct?
A: I’m not sure about expenses. I have to look that up.
Q: Is anyone else paying your legal fees, Ms. Carroll?
A: No.
As the trial approached, Kaplan, Carroll’s lawyer, wrote to the Trump legal team to admit that what Carroll said was not true. “During the course of preparing for her testimony at trial, Ms. Carroll has recollected additional information,” Kaplan wrote. “While Ms. Carroll stands by that testimony about this case being a contingency case, she now recalls that at some point her counsel secured additional funding from a nonprofit organization to offset certain expenses and legal fees.”
Oops. The “nonprofit organization” was a Hoffman group called American Future Republic. Trump’s legal team immediately protested that Carroll’s “belated disclosure of material information” raised “significant concerns as to [Carroll’s] bias and motive in commencing” the lawsuit against Trump. The judge, Lewis Kaplan, no relation to Roberta Kaplan, has not fully decided the question.
So now the trial begins. The anti-Trump world is again filled with hope that Trump will be held accountable, to use their favorite phrase. But just as in the case of Trump’s indictment, also in Manhattan, the Carroll lawsuit is not a very good test. For one thing, the alleged rape took place a long time ago; Carroll cannot even remember the year. There are reasons we have statutes of limitations. As years, and then decades, go by, evidence disappears, memories fade, witnesses die. At this point, it is simply not possible to prove in any real sense that Donald Trump raped E. Jean Carroll in 1995 or 1996. Maybe he did, maybe he didn’t, but it’s too late to know now.
In addition, advocates for the Adult Survivors Act wanted to address the tremendous suffering that victims of sexual abuse experience. The lawsuit says Carroll endured “significant pain and suffering” and uses some form of the word “suffer” 11 times. Yet in a June 24, 2019 interview with CNN’s Anderson Cooper, part of the book promotion, Carroll declined to refer to what happened to her as a “rape” and offered this statement: “I just have trouble with the word. I just have trouble. I write an advice column for 25 years and women write to me with these devastating stories and they have been violently, you know, disposed of by men. And I just — I feel too much respect for their suffering. I didn’t suffer, Anderson. I did not suffer. I did not lose my job. I wasn’t beaten.”
What does it all mean? It means that this is a murky case, far too old to prove, with basic facts impossible to establish. It is being pushed forward by a group of politically motivated Resistance figures who have for years been trying to defeat Trump in any way they can. Carroll, the plaintiff, sometimes seems swept up by the energy they have created.
Lastly, there are investigations of Trump going on now — the Georgia elections case, the Justice Department classified documents case, and the Justice Department Jan. 6 case — that consider serious criminal issues that occurred within the statute of limitations for the crimes that might be charged. Yes, the Resistance wants to hold Trump accountable, but is E. Jean Carroll the one to do it?
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