Donald Trump’s efforts to overturn a Manhattan civil jury’s $5m sexual abuse and defamation judgement were met with scepticism by a federal appeals court on Friday, with judges questioning whether his complaints about trial evidence held any merit.
The Trump attorney D John Sauer’s opening salvo, which claimed “this case is a textbook example of improbable allegations being propped up by highly inflammatory, inadmissible, propensity evidence”, was met with a swift rebuff.
“Your arguments are evidentiary issues and as you know, we give great deference to district courts on [evidence],” said the judge Denny Chin, one of three US court of appeals for the second circuit jurists hearing Trump’s argument. “Why should we order a new trial?”
Trump was present during the half hour-long second circuit arguments this morning as he continues to fight writer E Jean Carroll’s legal victories against him. He entered just before 10am, in his go-to ensemble: red tie, white shirt, navy suit.
Trump walked into court with his normal posture and gait – hunched shoulders and subdued steps. The former US president looked straight ahead and did not appear to acknowledge Carroll while traveling to the other side of the courtroom for his seat. He exchanged pleasantries with one of the court artists present to sketch him.
The legal melee comes at a remarkable moment for the Republican presidential nominee, who is seeking to return to the White House in November’s election. Assailed by a raft of legal troubles, Trump has often sought to use them to political advantage by telling his supporters he is being victimised by his enemies.
A jury found in May 2023 that Trump attacked Carroll in a department store dressing room some 30 years ago. Their award was composed of $2m for sexual abuse and $3m for defamation, as Trump repeatedly smeared Carroll’s reputation after she came forward against him just over five years ago.
Carroll disclosed the incident in a June 2019 New York magazine article, which was an excerpt of her then forthcoming book, What Do We Need Men For? A Modest Proposal; Trump responded by claiming she was lying and trying to damage him politically.
Trump’s team has argued that the verdict should be thrown out, claiming that the judge in the case – Lewis Kaplan – allowed evidence that should not have been permitted. Trump did not attend Carroll’s first trial against him and has since said he regretted not doing so.
The ex-president’s lawyers hammered on Kaplan permitting testimony from Jessica Leeds, one of two women Carroll’s team called to testify about their own encounters with him. Leeds came forward in October 2016 with an accusation that Trump groped her on an airplane in the late 1970s.
His lawyers have also hemmed and hawed about Kaplan allowing Carroll’s team to use a 2005 video where Trump bragged about groping women without their consent. During Trump’s conversation with an Access Hollywood personality, he said that with beautiful women: “I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait.
“When you’re a star, they let you do it. You can do anything … grab them by the pussy,” Trump was also recorded saying.
Sauer, who delivered his arguments in a rapid-fire stream of words, claimed that Leeds’s testimony was problematic for a variety of reasons, claiming that there was not a federal law against sexual assault on airplanes at the time of their alleged encounter. Chin asked Sauer why another law that was in place at the time – that prohibited “contact without consent” – wouldn’t apply.
“Mr Sauer, you’re speaking so fast, slow down a touch,” Chin said at one point.
“It’s an important case,” said Sauer, who often made frenetic hand gestures during his address. “And I’m passionate about it.”
During the proceeding, the lead attorney for Carroll, Roberta Kaplan, pointed out that there was a law on the books about airplane assault during Leeds’s encounter with Trump, noting that sexual assault is indeed a form of assault.
“It was a crime then to grope someone on a plane,” said Kaplan, who is not related to the judge overseeing Carroll’s cases. “It is a crime today to grope someone on a plane.”
She also downplayed questions about whether other accusers’ testimony against Trump – if determined to have been wrongly admitted – wrongly swayed the jury. Kaplan said that she could have won without their testimony, noting that outcry witnesses corroborate Carroll’s account and, she said, the Access Hollywood tape was tantamount to a “confession”.
“He said: ‘This is what I do. I grab women by the pussy without their consent,’” Kaplan said. She noted that Trump “had every opportunity to take the stand and rebut all this evidence” but did not.
On rebuttal, Sauer was asked about Kaplan’s confidence that the case could survive without propensity evidence. “The outcry witnesses had egregious bias against the defendant,” he said.
“But you had the opportunity to question them in front of the jury, right?” Sauer was asked.
Carroll also won a $83.3m civil verdict against Trump in a second trial this January. The judge in both trials, Lewis Kaplan, determined that jurors’ findings in the first trial – that Trump sexually abused and defamed Carroll – would be accepted as fact in the second trial.
Because of this, Trump could not re-litigate Carroll’s sexual abuse claim. The jury was tasked solely with considering financial penalties for damaging her reputation – and how much money was required to prevent Trump from continuing to tarnish her reputation.
After the appeals proceeding, Trump exited the coutroom without fanfare. A reported asked him: “Mr President, are you satisfied with how it went today in court?”
Trump did not answer.
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