E. Jean Carroll gets to keep her money. The Supreme Court has declined to review the $5 million sexual abuse and defamation verdict she won in federal court against Donald Trump. Carroll walks away enriched. Her financier – Reid Hoffman, a wealthy Democratic donor and LinkedIn co-founder who bankrolled the litigation – got his money’s worth too.
But the rest of us are much poorer. We are left with a badly damaged legal system and a clarifying, disturbing lesson about American politics: lawfare works.
Whether you love Donald Trump or loathe him, the wave of civil and criminal litigation targeting him over the past several years should alarm you. What we have witnessed is the weaponization of judicial processes to wound a political opponent – what scholars and commentators have begun calling lawfare. The Carroll case is one of the most troubling because basic tenets of due process were abandoned for the anti-Trump forces to produce their “win.”
This suit was funded by a political opponent with deep pockets whose stated goal was, in his own words, “protecting the rule of law from the threat posed by Donald Trump” – which is to say, damaging Trump politically. The underlying claims were, to put it charitably, difficult to evaluate. Carroll alleged a sexual assault in a Bergdorf Goodman dressing room but offered only a range of possible years(!) – late 1995 or early 1996 – with no greater precision.
As a defense lawyer, I find this not merely inconvenient but disqualifying. How does one mount a defense against an allegation untethered from time? Against what alibi does the accused check his calendar? The rules of evidence and the logic of due process both require that accusers bring something more than a vague recollection and moral righteousness.
And then there is the dress. Carroll claimed to remember the specific Donna Karan garment she wore that day – a detail she apparently recalled with precision while the year itself escaped her. Trump’s legal team and a number of investigators pointed out that the dress was not available until after some of the dates Carroll had originally suggested for the assault, raising serious questions about the reliability of her account.
“The people most loudly invoking the rule of law are engineering its debasement”
Carroll’s supporters and many media outlets treated this as a minor distraction. Timeline discrepancies happen, but in a functioning legal environment, evidence that an accuser’s detailed recollections are anchored to a physical impossibility would receive far more scrutiny than it did here.
Still outstanding is a second $83.3 million verdict in a separate defamation case, and that verdict remains under appeal. The lawfare ledger, in other words, is not fully closed.
The cynical genius of this model is that it offers upside on every branch of the decision tree. If the litigation succeeds outright, the political opponent is chased out of the race. If it partially succeeds, as here, the opponent bleeds millions in legal fees, spends years under a cloud and hands opponents a cudgel to wave at voters. And even if the case collapses entirely, it is impossible to unring the bell of even the most flimsy accusations after gallons of spilled ink.
This is the logic of banana republic justice, and the bitter irony is that its American architects are the same voices who fill our public square with warnings about “Democracy Dying in Darkness” and authoritarianism. The people most loudly invoking the rule of law are engineering its debasement. They have simply decided that the ends – stop Trump at all costs – justify the means, which is, of course, how Democracies die.
The Supreme Court’s reluctance to wade into this particular dispute is understandable on its own terms. The Court takes a tiny fraction of the cases presented to it, and its criteria for doing so are, and should be, principled, not political. One can respect the institution’s selectivity and still mourn the result: a verdict reached through a process riddled with due-process concerns now carries the implicit endorsement of the Court’s silence.
The Carroll case makes clear to every well-funded political operative in America that the courthouse is a viable arena for political gamesmanship – that even a weak case, pursued with enough money and media support, can deliver a trophy.
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