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How Trump’s E. Jean Carroll deposition doomed his defense

Carroll’s team most likely knew one of the primary rules of Trump litigation: if you get him into a deposition, anything can happen.

On Tuesday, a Manhattan jury found Donald Trump liable on almost all of the counts against him, including sexual abuse and defamation, and ordered him to pay E. Jean Carroll $5 million in damages. (The jury didn’t find Trump liable of rape.) This counts as a big win for the former advice columnist and media personality. But make no mistake, her case was originally a long shot. That is, until Trump testified at his deposition.

Carroll first sued Trump alleging defamation in 2019. At that time, the statute of limitations for civil cases alleging sexual assault had long since expired. So Carroll employed a creative workaround: She sued him for defamation after he said Carroll lied about having sexually abused her. Then, in 2022, Gov. Kathy Hochul signed New York’s Adult Survivors Act, which gave adult sexual assault survivors a one-time, one-year window to file lawsuits, regardless of how old the allegations were. Some 30 minutes after the act took effect, Carroll’s attorneys filed their lawsuit against Trump alleging civil rape.

Some 30 minutes after the act took effect, Carroll’s attorneys filed their lawsuit against Trump alleging civil rape.

The central issue in both cases was always “exactly the same — whether Mr. Trump raped Ms. Carroll,” according to Judge Lewis Kaplan. Although the jury ultimately stopped short of saying Trump committed rape, it concluded he sexually abused Carroll and then defamed her when she spoke out about it.

But again, Carroll was the underdog up until the trial actually began. The Adult Survivors Act does empower victims to file complaints against their assailants decades after the statute of limitations expires. Yet it’s one thing to file a complaint in court. It’s another thing to have to prove your sexual abuse case, after evidence has decayed and witnesses’ memories have faded. The Carroll v. Trump case highlighted how difficult it is to track down some of these important details decades later. Both sides were at a disadvantage: The plaintiff couldn’t allege when the assault took place, for example, and the defense didn’t have a date to check an alibi against.

Carroll was also not a perfect witness (whatever that means). Her behavior could be characterized at times as “weird” and “unusual.” Those aren’t my words; they are the words of her own attorney's closing argument. Among other things, Carroll was a self-proclaimed fan of Trump’s television show “The Apprentice” and asked her followers on social media who would consider having sex with him.

But Carroll’s case improved after she testified. She didn’t have eyewitnesses to the assault, but that’s to be expected: Assailants often isolate their victims. She did have witnesses who corroborated her reports of the attack, which bolstered her sometimes uncertain testimony. Carroll’s team had an expert who explained away her behavior, as well.

While his legal team was often criticized, it was really Trump who made this a winnable case for the plaintiff. To be fair, some criticism of Trump’s lawyers was warranted. Joe Tacopina could have controlled the witness better on cross-examination; his questions gave Carroll too many opportunities to push back. Tacopina was also criticized for his aggressive cross-examination of a (then alleged) sexual abuse victim. But he couldn’t have treated Carroll with kid gloves. His theory of the case was that she was a liar and not a victim. His strategy, distasteful to many, was also consistent with his theory of the case.

But the biggest witness against Trump was, of course, Trump. Whether it was the infamous “Access Hollywood” tape or clips of his video deposition, Trump was his own worst enemy.

Trump could have really scored some points at his deposition. All he had to do was testify the way you and I would if we were asked about something that never happened: “I don’t know, because it didn’t happen.” Trump stuck to that script for much of his deposition — until he didn’t. Then, he veered into damaging improv.

Trump mistook Carroll for his former wife Marla Maples in a photograph shown to him at his deposition. But the only reason that mix-up was even significant is that Trump also insisted, for no reason at all, that Carroll was “not my type.” I’m not aware of any accused sexual abuser in history who has ever used that defense successfully. I’m not sure a judge would even allow that as a defense in a criminal trial. There was no reason to say that, and it was perhaps one of the most damaging statements he made. But Trump wasn’t finished with the unforced errors: For no reason whatsoever, he gratuitously added that Roberta Kaplan, Carroll’s attorney, wasn’t his type, either.

And this wasn’t even the most self-destructive moment. Questioned about the 2005 “Access Hollywood” tape, he actually defended his comments about grabbing women by their genitals without consent. “Historically, that’s true with stars,” he said, meaning it’s true that the rich and famous have been able to get away with that kind of behavior. “If you look over the last million years, I guess, that’s been largely true. Not always, but largely true. Unfortunately or fortunately.” What part of that was fortunate, exactly?

Kaplan knew Trump handed her gold (or with Trump, something gold-plated) with the “not my type” testimony and his defense of the “Access Hollywood” comments. Both featured prominently in her closing argument. Both were pieces of evidence that didn’t exist before Trump offered them up on a platter. Without them, Carroll’s case was significantly weaker. But Carroll’s team most likely knew one of the primary rules of Trump litigation: if you get him into a deposition, anything can happen.