On this week’s Amicus podcast, Dahlia Lithwick spoke with E. Jean Carroll, the plaintiff who successfully sued Donald Trump for sexual abuse and defamation in a Manhattan courtroom last week, and her attorney, Roberta Kaplan. In the interview, they discussed the trial and its aftermath, and why they have options for further legal action. Their conversation has been transcribed below; it has been lightly edited for clarity. (Disclosure: Lithwick is friends with both Carroll and Kaplan.)
Dahlia Lithwick: E. Jean, one of the lessons that I took from the trial? Your jury was six men, three women. Nary a Manhattan avocado toast eater among them. But they had no trouble believing a whole bunch of things that you were very coherently and aggressively saying about assault victims. Like “they don’t always scream.” They don’t all hotfoot it straight to the police station. They sometimes follow a man into changing room, and that doesn’t make them a whore.
In so many ways. I felt like your testimony upended decades, if not centuries, of ideas about how the storytelling has to go in a trial, to construct a “good victim.” When Virginia Heffernan and I talked to you right after the book came out [E. Jean’s allegations against Trump were first published in her book], you were really uncomfortable saying it was a rape. That you were a victim. You pushed hard on that in that conversation, and you’ve carried that all the way through. You just insisted that whatever that box was, you would not live in it. And that seemed to have gone all the way through the trial, and the jury seemed OK with that.
E. Jean Carroll: They heard me. Which to me was astonishing because I didn’t quite understand the process—the process where you sit in a chair, and a male peacock from the 17th Century comes and questions you for a day and a half. So I just said what happened. I didn’t sugarcoat anything. I just used regular, as we say, girl language. I’m still pretty amazed that the process worked. It just worked brilliantly.
Lithwick: It worked brilliantly. And I think for so many decades, [victims] have had to answer, why didn’t you cry? Why didn’t you scream? For you to say, “how dare you ask that?” and to prevail, must have felt like the ground shifting.
Carroll: See, I was born in the middle of World War II, so those questions didn’t rattle me. I’m used to them. Younger women, like you, your hackles went up, I’m sure. But to me, you were always asked, “Well, what were you wearing? How short was the skirt? Were you flirting? Why didn’t you scream? Why didn’t you fight?” It’s all about what the woman did wrong, never or rarely, ever about what the man did wrong. So we maybe turned that right side up.
Lithwick: I also noticed something: that you are hilarious, E. Jean. Like you would just say funny stuff, and I wonder if that helped diffuse things, too. The jury was laughing. I know you well enough to know that you have no filters. I think it was not lost on the jury that somehow you were talking about horrific pain and trauma. And also you were able to be three-dimensional, while being laugh-out-loud funny.
Carroll: It’s the long tradition of women over thousands and thousands of years. If we do not laugh at men and the horrible things they do, we would all be crying and life would be horrible.
Lithwick: Do you know a ton about the law now? Do you feel like you went to law school?
Carroll: Oh, I am fascinated by the law. It’s so dramatic. It’s so much better than movies and television series. It was the most dramatic thing, and nobody knew what that jury was gonna do. Nobody.
Roberta Kaplan: E Jean, was being in the courtroom, the day-to-day—was it what you expected? And if it wasn’t, how was it different?
Carroll: I didn’t expect it to have so much grandeur. And Judge [Lewis] Kaplan was this tall, monumental man with this huge mane of gray hair. And he got off one-liners. The people in the courtroom adored him. He was so respectful of the jury. It was like a big, big pageant with drama underneath.
Lithwick: Now I have to ask the question that I hate: Within 24 hours of this victory, Donald Trump was defaming you again in real time with substantially the same claims, all seemingly unchecked. Robbie, did you expect that to happen? I mean, did you say to yourself a week ago, “It’s done. He shall never defame us again.” Or more, “set the timer because he’s gonna blow?”
Kaplan: I knew he would continue to deny it. But once the jury came back and the CNN Town Hall was on, we knew they were going to ask about it. And we knew he wasn’t going to say, “OK, now I admit it, I was wrong. I’m so sorry E. Jean, that I did that to you.” We knew that wasn’t gonna happen.
I think I was a little stunned that he used exactly the same language. He basically repeated the defamation in ways that make it very easy for us to not have to prove a future case on the merits, because we’re gonna get what’s called collateral estoppel or issue preclusion. So that wasn’t maybe wisest thing for him to do.
Lithwick: Like, he should have had a thesaurus and defamed her using different words?
Kaplan: Different words, exactly. But it didn’t surprise me at all that he did it. I’m watching to see if he keeps doing it, though. I mean, I think the threat of [losing] more and more money may ultimately tone down what he says at some point.
Lithwick: And E. Jean? You described that second round at the town hall as just assaultive again—and not just assaultive of you, but of all of the women who had taken that trial to mean that maybe he will stop talking about women this way. I wonder how we answer the question of how this legal system makes him stop if every time he loses, he just does it more. What do you do with the defendant who just doesn’t care?
Carroll: Robbie has figured it out.
Kaplan: Tell me what I figured out.
Carroll: You figured out legal recourse to Donald Trump’s lies. That’s what you do.
Kaplan: So I’ve talked to a lot of prominent First Amendment lawyers who say that this is probably the best factual scenario ever for a gag order: A post-defamation verdict gag order that would basically ask Judge Kaplan or someone else to prevent him from saying this. The problem with that is: There’s all kinds of issues. I’m not sure it’s worth the effort, but we certainly have a lot of other options on the table, all of which we are seriously considering.
Lithwick: Does the fact that this loss means absolutely nothing to him somehow diminish it for you?
Carroll: But it does mean something to him!
Kaplan: I think he understands money. One thing Donald Trump understands is money, and $5 million for Donald Trump is not nothing. And there’s really no viable appellate argument. So he’s going to have to pay that $5 million with interest sooner than he thinks he’s gonna have to pay it.
Carroll: Wait a minute, he pays interest?
Kaplan: He’ll have to pay interest from the time of the judgment. Yeah. That’s 9 percent … I’m not even sure he’s got $5 million in liquidity. He may have to sell something to pay you the $5 million.