Jennifer Taub, a contributing writer for the Washington Monthly, attended the trial of Donald Trump in the matter of E. Jean Carroll. She is intimately familiar with the details of the sexual assault and defamation case launched by the journalist against the former president stemming from an encounter at the Bergdorf Goodman department store in Manhattan in the mid-1990s. A professor at the Western New England University School of Law, Taub is the author of Big Dirty Money and has written regularly about Trump’s legal woes for this mgazine. The Harvard Law School graduate and podcast host has also done interviews with me, her regular editor, about the 45th president’s vast array of legal troubles. On Tuesday, after just a few hours of deliberation, a Manhattan jury found Trump liable for sexual assault and defamation against Carroll and voted to award her $5 million in damages. Less than an hour after the verdict, I spoke with Taub by phone about Trump’s chances of appealing the case, the effect this case could have on other prosecutions, and the mindset of Attorney General Merrick Garland. Taub and I had also spoken on May 3 during the trial. This Q&A is a fusion of those two conversations. It’s been edited for brevity and clarity.
MC: Are you surprised by the speed with which they returned the verdict?
JT: I am. I thought they would be able to arrive at a verdict pretty quickly. But I thought it would take a while to figure out damages because Jean’s counsel did not ask for a specific number.
MC: I mean, they just got instructions this morning. So, it was really pretty…
JT: Inside of three hours. Remarkable.
MC: Now, they did not uphold rape but rather sexual battery.
JT: They ended up going with sexual abuse, maybe to get to a unanimous jury. But, you know, the fact that they decided to call it “sexual abuse” versus “rape,” I don’t think matters.
MC: What does your gut tell you about an appeal?
JT: Well, you know, he can file for an appeal within 30 days after the entry of the judgment, but there’s another defamation trial coming [owing to a suit from Carroll about comments Trump made while he was president].
MC: The only obstacle in that suit is that he made the defamation while he was president.
JT: It’s up to a jury to decide whether they think he was acting in his official capacity or whether he was acting as an ordinary person.
MC: So, these are all separate cases and inquiries looming over Trump—the [Manhattan District Attorney Alvin] Bragg case against him going to trial, this case, whatever [Department of Justice Special Counsel] Jack Smith is considering, whatever [Fulton County, Georgia, District Attorney] Fani Willis is considering. Even though they’re all separate, is it fair to think today’s verdict might somehow, you know, get some of the other prosecutors to move along?
JT: Well, let me answer that question in a somewhat indirect way. You’ll see why it relates. In the closing arguments, Roberta Kaplan did the initial closing argument for E. Jean Carroll, and then you had Joe Tacopina for Donald Trump. And then the final word, before the judge gave the instructions to the jury, came from Mike Ferrara for E. Jean Carroll, who said that for you to believe Trump, you would have to believe that every person who testified was lying. Okay, this is, I think, the first time a jury in Donald Trump’s history has decided they didn’t believe him. He was deemed a liar, and he wasn’t even in court. And this puts his lawyers in a tremendous bind.
Because normally, a defendant does not take the stand in a criminal case. Normally, in a civil case, he would have taken the stand. Well, he didn’t. And they still found him a liar based on the deposition, testimony, and everything else. And now we have a situation where it would be crazy to let him take the stand in his defense—keeping him off the stand? That’s not going to work. And if I were his lawyers, I’d be very concerned that an ordinary jury of nine people—six men, three women—was willing to decide that the former president of the United States would lie, that he had maliciously defamed her. Juries are willing to give the benefit of the doubt to people who get up on the stand and tell their story compared to the person not in the room. What I haven’t said yet, is what an incredible coward this man is. He had so little faith in his own ability to keep his mouth shut that he couldn’t even show up in court, and he had to distract himself and build his ego by, you know, building another golf course. This man is the most cowardly, pathetic person.
MC: You’re friends with E. Jean Carroll.
JT: I became friends with her during the pandemic, and we would retweet each other and direct message. We first Zoomed together about two years ago, and I met her in person only on two occasions before seeing her in court. But we are, I would say, friends.
MC: Well, what was it like to hear the verdict?
JT: I’m just sort of still in a state of shock. I’m very happy for her, and I’m also very sad that she had to go through this whole process to have, you know, the world believe her. And now she can begin trying to restore her reputation because even as she has won in court, Trump is saying that it’s a disgrace and a witch hunt. And I imagine tomorrow night when he’s on CNN, you know, he’s going to further defame her, despite this verdict, and when does it end?
I mean, it’s like she may have won the battle. But if he has a platform, he’ll win the war. He will convince, you know, his followers and millions of people that the jury was wrong. And that’s frustrating to me.
MC: I guess she does get this second shot with the other defamation case.
JT: Or maybe a third if he continues to do it. When does it end? I just don’t know. I hope it ends with the second case. I’m mostly happy for her. But I’m also worried about what’s next.
MC: What’s your take on the lawyering on both sides?
JT: Joe Tacopina did the best he could with his client, but you know, he had a terrible client. He was outmatched by Roberta Kaplan. Her brilliance is her willingness to let the other partners in her law firm shine.
MC: Did sharing the arguments with her co-counsels have a tactical benefit?
JT: Oh, I think it must be tactical. I think it’s super smart to have the opening argument done by Shawn Crowley. You know, she’s a tall, beautiful woman. It’s almost like she’s a stand-in for the plaintiff. Having Mike Ferrara be the last word to a majority-male jury was extremely smart. You know, I think the unspoken ways in which people assimilate information and how they see the people in the courtroom affects the way they make their decisions. There’s a lot of information for jurors to deal with, and feeling comfortable with counsel, I think, is a really important factor.
MC: You’ve been urging Merrick Garland for a long time to, you know, not hesitate to prosecute Trump. It’s in [Special Counsel] Jackson’s hands right now. But what would you say to Garland after a verdict like this?
JT: Can you be more specific?
MC: January 6 has thousands of hours of film and gazillions of witnesses. This assault case is 25 years old and has no film or witnesses. We’re not even sure what day the incident occurred. And the jury still comes back within hours, unanimously convinced that this happened, that he’s defaming her, and that there was assault. Should that embolden Smith, Garland?
JT: I have a Google spreadsheet called “Defendant Trump Top Cases 2023.” And the first thing I have is the Manhattan DA Alvin Bragg’s conviction from December of 2022 of the Trump corporation. So that’s the first verdict against a former president’s business. I have it in 2023 because the actual $1.6 million fine was imposed in January of this year. So that was only just a few months ago. Now it’s May in this E. Jean Carroll case, and a jury finds him liable. So, I think these things taken together, show that whatever concern or fear that a jury would be afraid to pass judgment, either criminal judgment on the business activities of the president or civil judgment on the president’s behavior—his words and actions—I think that line is crossed. We crossed that bridge, and there was no trouble. There has not been political violence, right? So, if there was that calculus about collateral consequences, I think they can now rest easy. We have crossed those lines and should not be worried about political violence after a verdict or worried that a jury would hold a former president to a much higher standard than an ordinary person.
MC: The idea of prosecuting the former president has been such a big mental barrier.
JT: Right. And we’ve had a verdict in state court, which was the Bragg cases, which is against the business. We’ve had a verdict in federal court against the man. The real question for me is, is Willis next, or will it be Smith? I think we’re going to have a very busy summer. And I also think the other question is, what is the line after which these cases get put on mothballs because it’s too close to an election?
MC: Labor Day is kind of the traditional campaign kick-off.
JT: Labor Day of 2024. Not this year, though, right?
MC: Well, if you recognize that the primaries start in February 2024—and you don’t want to interfere with the 2024 race—then you don’t want to screw around with indictments after Labor Day.
JT: I’m sorry. I also forgot about the third indictment, the 34-count indictment. And there was no political violence. How can this guy be the candidate?
MC: How can he not be a candidate? I think it’s the only thing that will keep the money coming in.
JT: Yeah. Wow. Can I ask you what is your take? What is your reaction?
MC: Well, I’m stunned that it was so quick. It’s a fairly complex set of facts. You’ve got to walk through the scene at Bergdorf and how it happened—just talking out the case the way juries do alone should have taken a day, right? And, as you said, they did the damage calculation so quickly, right? I’m amazed the damages weren’t even higher.
JT: In a way, that was good. I mean, you know, it’s not about the money.
MC: Right. And I wasn’t sure the six guys would be swayed so easily. Many guys are walking around in the wake of #MeToo, regrettably or not, worried about false accusations or misinterpretations. They might empathize with a guy who goes to a dressing room and thinks he’s getting…
JT: But [Trump’s legal team] tried to have it both ways by making it seem like she had consented. If he had said, “Well, I was there, but it’s not what she said happened.” But the fact that he completely denied it—“It never happened”—hurt him.
MC: You raised the critical point that once you’ve busted the mental block about prosecuting a former president, a massive impediment to prosecution has been lifted.
JT: Right. You’ve got a conviction of his business, we’ve got an indictment of the man, and we have the liability of the man. All those things have happened.
MC: I mean, you got an excellent RICO statute in Florida.
JT: You mean in Georgia?
MC: I mean Georgia. I’m sorry. Keeping track of all these cases, sheesh.
JT: This is why I have the spreadsheet. You can borrow it anytime.
