As a former litigator-turned-journalist, I am always intrigued by the ways each profession marshals proof. Both worlds rely on investigation — and what I find particularly fascinating is when one field borrows a tool developed by another. Writer E. Jean Carroll’s rape and defamation lawsuit against Donald Trump exemplifies this feedback loop.
If you’re following the ongoing trial, you might already know that in the fall of 2017, Carroll had planned to embark on a road trip and a book project in which she would collect the untold stories of pioneering, independent women across America.
But The New York Times’ bombshell, Pulitzer Prize-winning reporting on Hollywood mogul Harvey Weinstein’s decades of sexual misconduct changed everything. That reporting, as she has testified, prompted Carroll to reassess her own untold stories. And eventually, it led her to publicly accuse Trump of raping her. (Trump has vehemently denied the allegation.)
Post-#MeToo, not only were sexual assault victims empowered to come forward, but their lawyers also understood they had new tools to corroborate those stories.
The #MeToo movement reverberates through the case in other, more subtle ways. One of the Times’ Weinstein reports featured the stories of women allegedly assaulted by Weinstein in the 1970s, women who did not complain to their employer, much less to the police.
How could you show these women were credible? Well, first, the sheer number of accusers lent each one more credibility than she had alone. One woman was a lone accuser; dozens of women were a pattern.
But more importantly, those who accused Weinstein of assaults decades in the past, unlike some of their more contemporary peers, lacked documentation. Whereas some of the younger women wrote scathing memos to Weinstein’s production company or obtained settlements memorialized in writing, the 1970s-era survivors seemed to have nothing but their own haunting memories of the alleged crimes.
That is, until the Times asked them a series of critical questions: “At or around the time this happened to you, did you tell anyone? Who? When?” And when they revealed that they had indeed shared their secrets, the reporters tracked down the secret keepers — a close friend here, former neighbors there — and had them corroborate the accusers on the record.
And it’s those two methods of corroboration — finding uncannily parallel stories of women previously unknown to each other and locating those in whom the accusers said they confided in real time — that Carroll’s lawyers have now imported into the courtroom.
What even the most sympathetic of lawyers used to assess as a hopeless “he said, she said” can now be shaped into a cohesive, persuasive presentation of a pattern.
Carroll has made clear that she was neither seen nor heard by anyone during the alleged assault in the lingerie department of Bergdorf Goodman in Manhattan in the mid-1990s. She has also admitted publicly and under oath that she sought no help from law enforcement, received no medical or mental health treatment, and generally told no one until 2019.
Culturally, this isn’t hard to believe; Carroll, now 79, is a member of the so-called silent generation of women. When tragedy struck, they were trained to lift their chins, plaster smiles on impeccably made-up faces, and say nothing. They buried traumas far under their fabulous exteriors. But historically, such stoicism and silence would have made her case a loser.
Post-#MeToo, however, not only were sexual assault victims empowered to come forward, but their lawyers also understood they had new tools to corroborate those stories. And Carroll’s lead lawyer, Robbie Kaplan, was especially attentive to the lessons of #MeToo as she developed Carroll’s case, especially given Trump’s own obstreperous litigation conduct.
For example, yes, Carroll still has the dress she alleges she wore on the day of the assault — and swears she’s never worn since. But Trump delayed and ducked the lawyers’ efforts to obtain his DNA sample for three-plus years. Finally, Kaplan decided that the trial just could not be pushed off, even if that meant proceeding without what might have been hard, scientific proof that Trump had sexual contact with Carroll.
So what does Kaplan and her team have in the way of corroboration? They have two witnesses, Jessica Leeds and Natasha Stoynoff, who say Trump sexually assaulted them in 1979 and 2005 respectively. (Trump has denied their allegations as well.)
Strangers to each other and Carroll, they nonetheless share eerily similar allegations that begin with an unwanted, unexpected kiss in tight and/or isolated quarters — a dressing room, an airplane, a deserted Mar-a-Lago ballroom — from which there was no easy escape.
Carroll’s legal team also has the two friends Carroll allegedly told about the assault in real-time: Lisa Birnbach, who testified on Tuesday that a breathless, shaky Carroll called her from her cell phone immediately after leaving Bergdorf Goodman, whereupon Carroll begged Birnbach never to tell anyone else or even mention it to Carroll herself.
Birnbach said she kept that promise until 2019 when Carroll came forward and she ultimately, if not reluctantly, joined her for an interview with — you guessed it — The New York Times. Asked why she was testifying for Carroll now, despite the disturbing, antisemitic messages she said she has received due to her association with Carroll, Birnbach said simply, “I want the world to know she was telling the truth.”
And over the coming days, the jury is expected to hear from legendary New York newswoman Carol Martin, Carroll’s then-co-worker at the cable network America’s Talking, a precursor to MSNBC. There, both women reported to the late Roger Ailes, a Trump friend himself accused of sexual misconduct. Carroll told Martin her story just days after the alleged assault, and when Martin, pragmatic and protective, warned Carroll that Trump could destroy Carroll’s career, if not her life, with his phalanx of lawyers, she listened — and shut up, according to Carroll’s testimony.
And it’s that kind of evidence that has the potential to transform the Carroll case. What even the most sympathetic of lawyers used to assess as a hopeless “he said, she said” can now be shaped into a cohesive, persuasive presentation of a pattern. All it takes is diligence, shoe leather and the influence of dogged journalists who, stymied by the walls Weinstein carefully constructed to shield himself, developed the tools lawyers never knew they needed.
