By David French
From the beginning of the #MeToo movement, both its advocates and good-faith critics have made a series of powerful, necessary points. The courageous women who blew the whistle on powerful men exposed a culture of impunity that still exists, decades after the development of workplace harassment law and generations after a dramatic increase in female workplace participation.
But they did more than merely blow the whistle; they also educated the public. Abuse is still abuse even if a woman is too terrified in the moment to scream. Abuse is still abuse even if a woman does her best to carry on with her life. The list of lessons is long.
At the same time, good-faith critics raised an important objection: In our zeal to expose abuse, we cannot neglect due process. Abuse is evil and can destroy lives. False accusations can destroy lives as well, and the press is a poor place for adjudicating disputes. Whenever possible, we should resolve disputes in courtrooms, where rules of evidence control.
And this brings me to E. Jean Carroll. On Tuesday afternoon, a jury in Manhattan, New York, unanimously determined that Donald Trump sexually abused Carroll during an encounter at a Manhattan department store in the 1990s. It also found that he defamed her when he called the case a “complete con job” and her claims a “hoax and a lie.” And it finally determined that, despite the finding of sexual abuse, Carroll had not proved her claim that Trump raped her.
It’s important to note that this was a civil case, not a criminal trial. The burden of proof in civil cases is lower. The jury was charged with determining whether Carroll proved her claims with a preponderance of the evidence, not beyond a reasonable doubt. In other words, it had to decide whether Carroll’s claims were more likely true than false.
But the case was not a simple matter of “he said, she said.” Carroll provided her own testimony, of course. But she also presented evidence that she had told others about the assault at the time, as well as evidence from other women that Trump had assaulted them and touched them without their consent.
Trump declined to testify at the trial, but the jury did see his videotaped deposition, during which he denied Carroll’s claims but also doubled down on his assertions in the infamous “Access Hollywood” video. “I just start kissing them,” he said on the tape, “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.” He added: “Grab ‘em by the (genitals). You can do anything.”
I spent decades litigating cases, including a number of sexual harassment cases, and as I watched the evidence accumulate, I reached a tipping point; I would have been surprised by any verdict other than the one we received Tuesday. Juries can always surprise you, of course, but what made the verdict truly notable wasn’t the outcome. It was the identity of the defendant. In an important moment for the rule of law, a jury heard evidence against a former president and reached exactly the conclusion that it likely would have reached for anyone else.
Now America faces an all-too-familiar challenge. The court system has once again delivered an outcome supported by the law and by substantial evidence. But will that change Republican hearts and minds?
If past performance can predict future results, I’m skeptical. After all, we watched as even Trump-nominated judges ruled time and again against Trump’s election challenges, yet a majority of Republicans still do not believe that Joe Biden legitimately won enough votes to carry the 2020 election. When the choice is between the law and the evidence or Trump, Republicans have consistently picked Trump.
But is sexual abuse different? Can an actual jury verdict — after a trial featuring all the due process that American law requires — finally break the bond with Trump?
Here is the darkest possible outcome to the case, one that I fear is more likely than not: The Republican public will either shrug at the result or will simply choose to disbelieve the jury, assuming without evidence that it was biased against Trump. Indeed, when asked about the verdict, Sen. Marco Rubio told a Bulwark reporter, “That jury’s a joke.” Sen. Lindsey Graham said he questioned “the whole process” and told Punchbowl News, “I think you could convict Donald Trump of kidnapping Lindbergh’s baby.”
But would a jury so hopelessly biased against Trump reject Carroll’s rape claim? Or is that an indication that the jury actually weighed the evidence supporting each charge?
I hope and pray that Republicans don’t shrug. There are conservative women (including my own wife) who are themselves victims of sexual abuse and have watched, aghast, as Republicans have wrapped their arms around a man who’s faced an avalanche of allegations of sexual misconduct. Yet there was always an explanation, a rationalization for the continued support. They’re all lying, Trump’s defenders would claim. Nothing has been proved. Why didn’t they take him to court?
But Carroll did. She did exactly what Trump’s defenders demanded. She went to court, faced cross-examination, looked the jury in the eye and made her claims. She provided witnesses who supported her story, under oath. The court gave Trump a chance to answer, to do the same thing — to look the jury in the eye and state his case. He declined.
The jury’s verdict echoes beyond politics. It implicates our nation’s moral core. Trump had his day in court. He lost. Now the GOP faces a very different kind of trial, one conducted not before a jury, but before a watching nation. It’s a test of decency, integrity and respect, and it is a great tragedy of our time that no one can presume that it’s a test the party will pass.