Is Trump About To Be Held Liable For Rape?

939637If you’re smart, you make predictions only about things that will happen a year or two from now. Then, when your predictions don’t come to pass, everyone will have forgotten that you made the predictions in the first place. Perfect: You get the benefit of making predictions, without the ignominy of having been proven wrong.

That’s what smart people do.

No one ever accused me of being smart: I’m about to make a prediction that will be proven right or wrong within the next 48 hours: In the E. Jean Carroll trial, Trump will be found liable for rape before 5 p.m. Eastern Time on Wednesday, May 10.

Here’s my thinking: As I’ve said for weeks, this is an extraordinarily tough case for Trump. He has many, many people testifying against him, including E. Jean Carroll herself, two of Carroll’s friends who say that she told them about the rape back in the 1990s, and two other women who say that Trump assaulted them.  And then you have Trump’s own image and voice on the “Access Hollywood” (“grab ’em by the pussy”) tape.

To win this case, you basically have to convince the jury that all of those people are lying because they’re Democrats and hate Trump. That’s a damn near-impossible task.

On the other side of the coin, you have only Trump’s denial of the rape. But that was on a videotaped deposition that included Trump “not remembering” that he had affairs during his first marriage, despite the fact that the New York tabloids had exhaustively covered Trump’s affair with Marla Maples (during his first marriage) while it was happening.

On that record, I just can’t see Trump winning. (By a preponderance of the evidence, the many witnesses against Trump are all lying, and Trump alone is telling the truth? Not gonna happen.) I can, of course, see the jury hanging, because the jury may contain a Trump loyalist or two who refuse to vote against Trump no matter the facts. But I suspect that, in all likelihood, Trump will quickly be found liable. (There may be a battle in the jury room about the amount of damages that should be awarded, but the jury isn’t going to want to come to court day after day just to haggle about the amount of the verdict.)

Thus: A verdict for E. Jean Carroll by 5 p.m. Wednesday, May 10. You read it here first.

The more interesting question is the effect of the verdict.

I do not for an instant believe that a finding of liability for rape will cause Republican primary voters to abandon Trump. People have been saying for seven years now that some event had to be the straw that would break the camel’s back: Surely Trump voters would turn against him when the “Access Hollywood” tape was first released; surely with the Mueller Report; surely with Trump finding Putin to be more trustworthy than the American intelligence agencies; surely the extortion of Ukraine that resulted in the first impeachment.

But no, no, no, no, and no. Indeed, even when Trump incited a riot to keep from giving up the presidency and then stood by silently for three hours while Congress was being ransacked, Trump’s supporters stuck by him. So who’s going to care that Trump raped somebody 30 years ago?

Trump was right about one thing: He could shoot somebody on Fifth Avenue, and his supporters would not abandon him.

But what will Republican office-holders say when Trump is found liable for rape?

I’m guessing a few things will happen. First, Republican office-holders will decline to comment about the adverse verdict for as long as possible. Second, Republican office-holders will then say that the jury verdict must be tested on appeal before it can be believed; the appellate process will eat up roughly another year. Lastly, Republican office-holders will say that this was a New York (and thus overwhelmingly Democratic) jury and a prejudiced judge, so the jury’s verdict doesn’t mean anything. (It’s true that the judge who presided over the Carroll case — Judge Lewis Kaplan — was appointed by a Democrat, Bill Clinton.  But Kaplan’s background before taking the bench was stellar — “Harvard Law Review”; partner at Paul Weiss — and his performance on the bench for the past 30 years has been first-rate. Trump may insist that people who disagree with him are all partisans or morons, but that’s a tough argument to make about Kaplan.)

In any event, I’ll be proved either a genius or a fool (on this matter, anyway) by Wednesday at 5: The jury will come back with a verdict in Carroll’s favor by then.

Stay tuned.

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at


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