Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Among the many court proceedings Donald Trump is facing, the one that's been taking place in New York this week stands out for several reasons. It's round two of the defamation suit brought by the writer E. Jean Carroll, in which Trump has already been found by a jury to have sexually assaulted Carroll in a Bergdorf Goodman dressing room in Manhattan in the 1990s.

Donald Trump: I'm automatically attracted to beautiful. I just start kissing them. It's like a magnet. I don't even wait. When you're a star, they let you do it. You can do anything.

Brian Lehrer: That was Trump in the infamous Access Hollywood tape made public just before the 2016 election. The jury found that in this case, Carroll didn't let him do it, kissing and more, but he did it anyway. Many women have said the case feels so personal to them because of things they and people they know have gone through, but apparently Trump thinks it will help him, not hurt him politically, because he showed up in the courtroom this week to make disparaging remarks about Carroll and the judge right in front of the jury that will sit in judgment of him. The case apparently didn't move Nikki Haley enough to even acknowledge the sexual assault verdict when she was asked point blank about it by a voter in a New Hampshire Town Hall last weekend.

Nikki Haley: First of all, I haven't paid attention to his cases and I'm not a lawyer. All I know is that he's innocent until proven guilty. When he's proven guilty, and he's sitting in a courtroom, that's exactly what I'm talking about. You've got investigations on Trump and Biden.

Brian Lehrer: Interesting way to try to beat Trump in New Hampshire. Say you didn't even know he was actually found by a jury to have committed sexual assault. The case this week is very Trump '24 too. After the first jury found that the assault happened and he defamed Carroll by maliciously lying about her, he just kept repeating the same things about her including on television, so she sued him for defamation again, and they are back in court.

Andrea Bernstein has been in the courtroom covering this for NPR and she joins us now. Many of you know Andrea Bernstein from her Trump Inc. podcast that she did for WNYC. The Will Be Wild podcast series about January 6th, her book American Oligarchs: The Kushners, The Trumps and the Marriage of Money and Power, and more. Andrea, hello, welcome back to WNYC.

Andrea Bernstein: Hey, Brian. Great to be on with you.

Brian Lehrer: Can you remind everybody of the basics of this case? Would it be right to say that the Me Too movement of say 2017, 2018 which was partly touched off by the Access Hollywood tape the year before, prompted Carroll to go public with this allegation of Trump assaulting her from the '90s?

Andrea Bernstein: It's hard to say exactly. That was certainly in the cultural zeitgeist at the moment. She had been working on a book called What Do We Need Men For and had gone on a cross country road trip to talk to women, and in the course of this says that she came to a personal reckoning, that she was talking to all these women and they were telling her their stories. She felt under an obligation, she said, to tell her own story.

She put her account of what happened to her in the Bergdorf Goodman department store in the 1990s in her book. An excerpt appeared in New York Magazine and within hours of that, Trump started defaming her. He called her a liar. He said, "I didn't know her." He said she was doing this just to sell books, just to get publicity, just to get attention. He sort of threatened her saying she should be very, very careful. She was treading into potentially dangerous testimony. He has not backed off that position even until this week, where he repeated that same defamation.

Now, I'm calling this defamation even though he is on trial for defamation because-- For complicated legal reasons, there was a second lawsuit she filed. She sued Trump for this act of defamation while he was president, and because he was president, he had his justice department argue that it should defend him. It went to the Second Circuit Court of Appeals, which covers New York. They threw it to the District of Columbia Court of Appeals, which covers Washington. That's the case that's on trial this week.

She filed a second case under a New York law, which allowed adult survivors of sexual abuse to sue for civil damages for a year beginning in Thanksgiving of 2022. That is the case that went to trial last spring in which a jury found that Trump had sexually assaulted and/or was liable for sexual assault and had defamed E. Jean Carroll. That's the case that already happened.

Brian Lehrer: There was that finding.

Andrea Bernstein: The judge in this case has said, "We know there was sexual assault." He actually even in the legal paper earlier this month called it rape. He said, "We know there is defamation. The issue is what are the damages going to be." That is what's at issue in this trial, which was for an earlier incident of defamation, but it's coming to trial later.

Brian Lehrer: Right. Okay. That's the timeline of two different cases, and what law enabled him to go forward, what different times, so I get that that's a little wonky. We don't even have to necessarily focus on that timeline to understand what's at stake here and what Trump has already been found liable for. Why did the judge, by the way, to cite something you just referred to, say that Trump had been found to have raped E. Jean Carroll? I thought at the time of the original finding, the jury found sexual assault, yes, but not rape. Is that wrong?

Andrea Bernstein: That is correct. That caught my attention, too. I made some inquiries. I did some reporting on it. What I heard from a number of legal experts is that because of what happened, which is that there was testimony and it's pretty graphic. We're talking about the former president here, but that there was this light-hearted conversation. He said, "Hey, you're the advice person. Hey." She said, "Hey, you're the real estate developer." They had known each other from the New York celebrity world, if you will. He said, "I'm buying a gift. Help me buy a present." They end up in the lingerie department, and they have this joke about there's a piece of lingerie and he says, "You should try it on," and she says, "You should try it on."

Then Trump, according to the testimony, steers her over to the dressing room, takes her inside, pushes her against the wall, shoves his hand inside her and then shoves his penis inside her. That was the testimony. The judge has the latitude to describe that as rape. That's what he said. He was trying to send a message to the defendant saying, "Don't try to deny this. It's been established. That is off limits for this trial, that we are not relitigating that. We are looking at the question of damages."

Brian Lehrer: The jury last May awarded Carroll $5 million in damages. How did they arrive at that number?

Andrea Bernstein: [laughs] Unclear how a jury arrives at that number, but there was a percentage of liability assigned for the sexual assault, and a percentage for a second act of defamation. The one that I described earlier was while he was president, so from the Oval Office, if you will, speaking broadly from the press scrum outside his helicopter, he made these remarks about her.

The second time was in October of 2022, when he put out a statement on his social media platform, Truth Social, which he called her a con job, et cetera, et cetera. That was the act that came up in last May's trial, in last year's trial. This one is over what he said from the White House. The argument is that is potentially much more serious because it was the first act. The first time you lie about somebody is a time you really can damage their reputation according to the legal theory. It could be potentially much, much more than $5 million in damages for this trial.

Brian Lehrer: Interesting. Now, Trump's defense has argued that, "Look, Carroll was making a serious accusation against him," you've just described how serious, "and he was denying it by calling her a liar." A person has a right to basically say they're not guilty and their accuser is lying. Why was that found to be defamation?

Andrea Bernstein: Well, denial is one thing and the plaintiffs are arguing that character assassination is another thing. Saying, "She's a con job. She's a whack job. She's not my type," and repeatedly saying it over and over again, the argument is, contributed to a real decline in her income and her reputation. She testified earlier this week that-- She was a light-hearted advice columnist. She would talk about how she has this email for Ask E. Jean. If anybody doesn't know, she had the longest-running advice column in the history of ELLE magazine, and she has this Gmail address Ask E. Jean. She said people would write to her asking her about problems, or they would say, "Hey, E. Jean, my husband and I are back together. Thanks for your advice." [chuckles] That's the kind of level of communication that she was getting pre-Trump's attacks on her.

Post it, she was being called a whore, a hag, an ugly thing. People said, "No one would want to rape you." Or people said, "You deserve to be raped, you deserve to be murdered." Each time Trump would attack her, the plaintiffs have been arguing in court this week, there was what E. Jean has called a flood of slime released about her on social media, to her email, and she would get these messages over and over again. Her argument is, "I'm a writer, I'm a journalist, my credibility is everything."

Now, because she argues of the actions of former President Trump, then President, her reputation has been irreparably damaged, and she's had the mental suffering of having to live with these constant death threats and disparagement, which gin up, the plaintiffs are saying every time Trump says one of these things.

Brian Lehrer: Those instances of disparagement and intimidation and threats and slime, as she characterized it, actually brings me to something that you reported happened during jury selection this week. Listeners, I want to invite you in here first. Any questions or thoughts about the Trump E. Jean Carroll case? Anyone with a personal story of what this case has touched off for you or political analysis of Trump or for that matter, Nikki Haley, which we'll get to, in the context of this case with Andrea Bernstein? 212-433-WNYC. Andrea who's been in the courtroom for NPR, 212-433-9692, call or text.

One of the things you described from this week's case, is the jury selection process where prospective jurors were being questioned as his routine, but Trump himself was sitting there scrutinizing these jurors. Can you describe some of what that was like, especially for the prospective jurors involved?

Andrea Bernstein: [chuckles] Obviously, I've not been in communication with the jurors. I can only say what it looked like it was like for them. Just to back up a moment, Donald Trump is not required to be in the courtroom. This is a civil suit, he is under no obligation to be there. He did not attend the first trial. I have thought, unlike the business fraud trial, which I've also been covering, this is easy to understand what happened.

I had thought why would he want to associate himself with these? It's been established that he, by the preponderance of the evidence, that he assaulted her so why would he want to go put himself in a room with her? That is what he did. He showed up during jury selection. The jury selection, some of it was the normal questions that juries get asked, which probably many listeners have been on jury duty. Do you know the defendant? Do you know any of the lawyers? Do you know the plaintiff? Can you be fair? This jury was also asked, "Where do you get your news media? Do you believe that the 2020 election was stolen?"

Three, I believe, jurors said yes to that question. They were asked, do you believe that Donald Trump is being mistreated by the legal system? A couple raised their hand. He put up his hand too when that was said. There were jurors in the jury box, and then there were jurors in some of the benches behind the defense table, and he would swivel around and really, really, really look hard and intently at the jurors as they were answering their questions.

Brian Lehrer: I asked because you say Trump isn't required to be there, but a defendant certainly has the right-

Andrea Bernstein: Oh, absolutely.

Brian Lehrer: -to observe jury selection, and that applies to Trump like anyone else. I'm thinking about how judges and their staffs and E. Jean Carroll herself as you described, and others have become targets of these public insults, even death threats when they say anything critical of Trump or hold him accountable for things. Do you think that Trump was looking at these potential jurors, some of whom are now actual jurors, in ways intended to intimidate them when they got seated?

Andrea Bernstein: It's hard to know exactly. The judge advised the jury to remain anonymous. One of the things he said that was so striking is, "Don't even tell your fellow jurors your real name."

Brian Lehrer: Wow.

Andrea Bernstein: "Consider using another name so that you cannot be tracked down." Certainly, that is something that is in the [unintelligible 00:15:33] of all of these trials.

Brian Lehrer: Similarly, once the trial began, Trump was there and making comments from the defendant's chair during other people's testimony. I think that's the part that's probably gotten the most press this week, but I'm going to ask you to describe it because that by itself, is pretty extraordinary. Can you give us some examples of that?

Andrea Bernstein: Right. E. Jean Carroll started to testify on Wednesday, and she is giving her account. There's a break, the jury goes out of the room and her lawyer stand up, and they say, "Your Honor," to Judge Lewis Kaplan, "We can hear the defendant saying it's a witch hunt, it's a con job. We think if we can hear this, the jury can hear it. Please admonish him to stop." That happens.

Then there is a second instance, just before lunch where the lawyers for E. Jean Carroll say again, "We're hearing these remarks," and the judge turns to Trump's main lawyer, Alina Habba, and says, "I don't want to have to consider excusing your client but I will." Then he turns to Mr. Trump, and he says, this is a bit of a paraphrase, but he says to Mr. Trump, "You would like it if I had to excuse you." Trump says, "I would, I would." The judge says, "You can't control yourself." Trump says to him, "Neither can you." [chuckles] That is how things ended before lunch.

In the afternoon, even after that, there was a point at which-- Some listeners and you may remember that there was a town hall meeting by CNN the day after the verdict of the previous trial in which Trump continued to-- He said, "I swear on my children," and I never say that which is true. I have not heard him swearing at his children very often. "I don't know this woman." Continues, "She's a liar. She's a con job," et cetera. I see Trump watching the video of himself saying this and nodding his head, and I can hear him say, "That's true." I'm maybe about, I don't know, 10 feet away, the jury is 10 feet away and is in another direction. Likely they can also hear it. He is saying these things.

Right after court on Wednesday right before he went to a rally in New Hampshire, he held a press availability where he repeated these charges, which Carroll's lawyers then played in the courtroom yesterday. The judge has already called the jury.

Brian Lehrer: There may be a third round of defamation charges.

Andrea Bernstein: Yes. Well, all this can go to damages, and that's what at issue with this trial.

Brian Lehrer: I see, which is the point of this particular case, is how much they should award E. Jean Carroll in damages for all these things that Trump has continued to do. About his outbursts from the defendant's chair, what are the rules? Do you know what the rules are? Can a defendant do that while somebody else has testified?

Andrea Bernstein: No. [laughs] The rule is you have to do what the judge says. You have to sit there in silence. The defendant is supposed to speak through their attorneys, but now I've seen Trump just disregard that twice. He did it previously and during the closing arguments of his business fraud trial, where he also just started to speak without the court's permission.

Brian Lehrer: If Trump was perceived as being obnoxious, and in a way defaming Carroll yet again, during his trial for doing it before, he was doing this in front of the jury that will decide his fate on this in terms of damages. Could you tell at all how the jury was perceiving him?

Andrea Bernstein: This is always hard to know. It does seem to be a studious jury. Many of them have notepads in their hands and are taking notes. It is movingly a jury of his peers, from a transit worker on the jury, there's a respiratory therapist, there's working New Yorkers that are going to be passing judgment on the ex-president. I think what is really important to keep in mind about this is each time Trump keeps saying this, it goes to the question of punitive damages. The question that Carroll's lawyer said is, "How much is it going to take? How much money is it going to take to get him to stop?" Say there's a huge verdict as there was for the recent Rudy Giuliani separate defamation trial, what happens then?

What it appears to be happening with Donald Trump is they have a political strategy, which is to discredit the jury, which is to make him look like a victim, which is to gin up the sense of grievance among his supporters. They've already lost on the issue of he defamed her, he assaulted her by the preponderance of the evidence, so the question is how much money? Their strategy appears to be aimed at discrediting the verdict and using whatever the jury decides to get more support for his presidential campaign.

Brian Lehrer: That's how it looks to me too. You have covered Donald Trump every which way over the years. You hosted the podcast Trump Inc., about the intersection of his business interest and the public interest. You've covered him as a politician. You wrote the book, American Oligarchs, about the Trumps and the Kushners. Now you're covering him as a defendant in court.

My guess and I think this is what you were just saying, would be that Trump doesn't care at all how this defamation case turns out. Everything he's doing is aimed at building political support in New Hampshire in the short run to defeat Nikki Haley or just more generally, to press the grievance button again because he thinks it's good for his re-election prospects. That's what you were saying, right?

Andrea Bernstein: Well, I think it may even be darker than that, which is, as a businessman, Trump was very keyed in on electing judges, so getting judges in that he can control. He certainly appointed hundreds of judges to the federal courts while he was president. I think the argument and it goes back to this Nikki Haley quote that you're pulling at the top, what he's trying to do is delegitimize the courts as a way of settling what is true and what is the rule of law. He has already been so effective going after other institutions, for example, journalism, as a independent arbiter.

By projecting to the world that no matter what happens, no matter what these judges and juries decide, they are wrong, you undermine our system of justice because who is to settle it then? If you say, a jury of your peers, what a jury of your peers does, what a judge does, I don't care, it means that no one can check his power, and that is the ultimate message that I think he is sending with all of this.

Brian Lehrer: Jelani Cobb from The New Yorker who is going to be one of our guests next week, wrote a piece about Trump called, Too Big to Convict. The theory does not concluding that he's too big to convict, but it raises that notion on the theory that back in the financial crisis in 2008, there were banks that were deemed too big to fail, and so the government bailed them out. Trump might be deemed as somebody who is too big to convict. That may be playing into the actions that juries take, the restraint that judges show and other people might be even jailed for contempt of court for things that he's doing, and things like that. So that's very real.

Part of the upside-down world we're living in, in that, each indictment for a civil suit claim against Trump seems to boost his poll numbers. Imagine how good convictions or large damage awards will be for him politically, even a finding by a jury, which already happened that he committed sexual assault. That's part of the upside-down world we're living in. There's a lot more to say about what has already happened in court this week and what we're expecting to happen next week as this defamation damage awards case Donald Trump with E. Jean Carroll concludes probably next week here in New York, with Andrea Bernstein covering it for NPR. Our caller board is all backed up. We'll get to some of you right after this break, and the Nikki Haley analysis piece of this too. Stay with us.

[MUSIC - Marden Hill: Hijack]

Brian Lehrer on WNYC with Andrea Bernstein, covering the E. Jean Carroll defamation damages award trial here in New York against Donald Trump covering it for NPR. Ethan in Cape Cod, you're on WNYC. Hi, Ethan.

Ethan: Hey, Brian. Hey, Andrea. Thank you for the show and for the segment. I just wanted to say he needs to be jailed. The fact that Judge Kaplan is not jailing him for contempt, as you say, it undermines the institution, it makes a mockery of the idea that everyone's equal before the law. He's violated decorum and it hurts us all. I think any attempt to gain this out and say, "Oh, what would be the political ramifications of jailing him?" We don't know what they would be, and that cannot be a consideration. He just needs to sit at least one night in jail. Thank you for taking my call.

Brian Lehrer: Thank you very much. That goes back to too big to jail, but what would happen to someone else? I know you're not a lawyer or legal analyst, but you've covered Trump every which way, but do you know? What would happen to someone else who is doing the things that Trump is doing in this courtroom?

Andrea Bernstein: It's hard to know because Trump is sui generis. He is the category of one. Available remedies include, he can't come into the courtroom, financial sanctions. There are certainly cases where people are severely disrupted and they have to spend a night in jail. I think that all of these judges are mindful that they don't want to play into Trump's hands and make a mockery of their proceedings. Of course, I don't know what's in their head, I would just say that that's how I read their actions.

Judge Engoron, even though Trump really attacked him, that was the state judge in the civil fraud trial, is the judge, was pretty lenient. He really gave Trump quite wide latitude in the courtroom, outside of the courtroom, and that case had no jury. Judge Lewis Kaplan in the federal court is pretty strict and severe. While we've been sitting in the courtroom before the judge comes in, the court security officers have come in and said, "Don't whisper. Don't chew gum. Don't violate any of the rules, or bring your toothbrush. Judge Kaplan will cause you to spend a night in jail." It's unclear what could or would happen.

Brian Lehrer: Larry in Woodside, you're on WNYC. Hi, Larry.

Larry: I wouldn't dispute Trump's poor behavior but a presentation of the actual guilty that he-said-she-said side. I don't think you've ever looked at it from the other side of the fence because your coverage is always entirely biased.

Brian Lehrer: Larry, in this case, it wasn't us, it was a jury who considered the evidence as to whether he committed sexual assault, and a jury found that he did. Is that enough for you or is it not?

Larry: No, it's not enough because just yesterday on the news there was a case of a jury convicting a fellow I think by the name of Ruffin to 20 years in prison for a murder he didn't commit after investigation, but have you ever looked at the other side of the argument?

Brian Lehrer: Well, of course, we look at the other side of all arguments in dispute situations. Thank you for your call anyway, but there's a great example, Andrea, I think, of the denial that people are willing to engage in when it comes to Donald Trump. He cites a case of a false conviction, a terrible false conviction where the guy was finally exonerated yesterday for a murder he didn't commit in Brooklyn a long time ago. Sure, those things happen, and they're terrible. Look who just became the Chair of the Public Safety Committee in the City Council yesterday, Yusef Salaam, who is one of the Central Park Five, the exonerated five.

Nevertheless, all these Trump supporters would jump to the conclusion that because false convictions happen, he's falsely convicted. It's not convicted, it's found liable, is the term, in this case. I just think it's a really great example of people being in denial no matter what a jury does, no matter what 12 juries and 12 different cases do when it's Donald Trump.

Andrea Bernstein: Well, the clip you played at the top of the show of Nikki Haley, one of the contenders for the Republican presidential nomination saying people are innocent until proven guilty. This is a civil trial, it's not a criminal trial, but it elides the fact that he was found liable. When you have that kind of messaging from prominent people, it has an effect on the populace. I think that's what we're seeing here.

Brian Lehrer: Can you do a little Nikki Haley political analysis here? You've been a national political reporter in the past, for people who don't know Andrea's past, traveling the country for WNYC in a presidential election year. I'm going to replay that Nikki Haley clip from the New Hampshire Town Hall last week where she was asked to comment on Trump as someone, again, found by a jury to have committed sexual assault. Here's what she said.

Nikki Haley: First of all, I haven't paid attention to his cases, and I'm not a lawyer. All I know is that he's innocent until proven guilty. When he is proven guilty and he is sitting in a courtroom, that's exactly what I'm talking about. You've got investigations on Trump and Biden.

Brian Lehrer: Deflect, deflect, deflect, maybe even feigning ignorance or maybe she really hasn't followed the case. Here she is the strongest challenger to Trump for the Republican nomination and a woman in that context no less not wanting to go on record about her opponent's sexual assault, finding by an actual jury any more than she wanted to go on record saying slavery was the cause of the Civil War. Can you offer any political analysis of that?

Andrea Bernstein: I obviously have not been on the trail. [chuckles] I've been in the courtrooms. I do think that there is this pattern in the Republican party of not wanting to take on Trump. You can draw a line from that to this increasing strengths of his position. There have been a variety of reasons presented from the political, don't want to offend his supporters, because if you start doing well, you're going to need to get some of them to win the presidency to something that we heard very troublingly in the aftermath of January 6th, that there were members of Congress that were afraid for their families that they would be harmed if they criticized President Trump.

It's clear from what's been going on in the courtroom this week that when former President Trump directs his eye at you, people respond. That is without a doubt true, but it is part of the phenomenon that has allowed the denialism to grow. She says guilty, this is not a criminal trial. That frames the argument in a misleading way.

Brian Lehrer: My guess at this point, regarding Haley, is that she sees the writing on the wall and has already given up trying to beat Trump for the nomination. She's not actually running to win in 2024 anymore. She's running to raise her profile and position herself for 2028. Ron DeSantis too, by the way, and they figured the path to the 2028 nomination depends on keeping Trump's base happy enough by not really saying a lot of obvious critical things about him this year. Does it look like that to you?

Andrea Bernstein: It could be. It's hard to know. I think one of the problems with that analysis is that each time Republican politicians take a pass, Trump's strength grows, and then they have more to contend with down the road. Just look, I know you've played this tape on your show many times, Mitch McConnell in the impeachment trial saying, "We have other venues to determine Trump's guilt or innocence. We should--" [crosstalk]

Brian Lehrer: Meaning the legal system regarding January 6th.

Andrea Bernstein: The legal system. Exactly. What is the effect of that? Had Mitch McConnell voted another way Trump would be in ineligible to be running for president. I think that's one of the problems. By not confronting him directly, he just draws strength. Now, in fairness, you look at what happened to the former governor of New Jersey, Chris Christie, he did attack Trump and his campaign went nowhere. It is very unclear what the options are. The table has been set by the actions of the Republican party up to now, and that is what all of the Republican opponents of Donald Trump are contending with.

Brian Lehrer: Chris Christie and Asa Hutchinson, who dropped out of the presidential race this week after coming in 11th or something in Iowa. Milta in the Bronx, you're on WNYC with Andrea Bernstein. Hello, Milta.

Milta: Hi. I am so happy you are on always. I guess this is my first time calling in though. I think that one of the things that we need to really take a look at is yes, there's tremendous amount of denial around Trump with his base. He's a demigod at this point, but the overarching concern for me is the misogyny that is so readily accepted in our political system, both by men and women, and the lack of any real forward movement that extends, for lack of a better word right now, grace to these women when they stand up and say, "Yes, me too."

Brian Lehrer: Yes, Milta, thank you. Thank you for being a first-time caller. Call us again. I think that can plant us back in the courtroom for the rest of the narrative after we've taken a few listener calls. Andrea, Trump was not there yesterday for the cross-examination of E. Jean Carroll. How did Trump's lawyer try to discredit her?

Andrea Bernstein: Let me just say it started on Wednesday. We did hear part of it. This was another issue that Trump has been harping on, which is that it was his mother-in-law's funeral, and inside and outside of the courtroom, his lawyers and he made a great deal of how unfair this judge is not to suspend the trial during his mother-in-law's funeral so he could attend both. He did, by the way, argue to the judge he needed two days off for the funeral. Then it was uncovered that one of those days he was actually going to be in New Hampshire campaigning.

Brian Lehrer: I agree with him though, by the way, about that one.

Andrea Bernstein: About the funeral.

Brian Lehrer: Don't you get a day off from your trial for your mother-in-law's funeral? I mean, come on.

Andrea Bernstein: It is unclear to me why the judge doesn't want to do that. On the other hand, this case was filed years and years and years ago. Trump has taken it to every court that he can to delay and I think the judge is fed up. Now, is that a justification? Probably not but that is the context for it. The cross-examination is that E. Jean Carroll has gained Twitter followers, she's gained supporters, and that she's become more famous in a way so that what Trump did and said didn't really damage her. Trump's lawyers have been arguing in fact that she enjoyed the publicity that came from the publication of her initial accusation and the follow-up.

It's very difficult in a defamation trial to make a defense that doesn't repeat the initial offense and that is the needle that they are trying to thread. They're trying to say she should have mitigated her own damages and that it is not as bad as she's making out.

Brian Lehrer: In terms of the financial damages to her. I know you got to go in a minute, but next comes Trump's case for the defense. Will he take the stand himself or just mutter from the sidelines or present any witnesses?

Andrea Bernstein: He has said that his defense will be him. His lawyers have not said-- No, excuse me. They're also going to put forward Carol Martin, who some people may know is a former Channel 4 anchorwoman in New York who was an outcry, one of the people that Caroll told at the time that it happened. There was evidence that came in the last trial about how Carol Martin had written some text messages saying something to the effect of E. Jean is going too far with this, something like that.

They have said that they will present her as well as the former president. As to what he will say, the plaintiffs have said, "Look, what can he say or he doesn't repeat his initial defamation?" His lawyers have said he has a right to say the context of when he was in the White House, and he was asked about this, what the questions were, how he responded. That is what they say he is going to testify.

Now, having seen Trump in person in two trials, the judges say, "Control your client." The lawyers say, "We will." Then Trump says whatever he wants. It's hard to imagine him not repeating his themes that it's a fake, it's a con job, it's a hoax. The judge is out to get him. Everybody's out to get him. We shall see. That testimony could come as early as Monday. Once Trump testifies, the case will probably rest soon after. There will be instructions and then it will go to the jury.

Brian Lehrer: We will see if he puts himself under oath. Andrea Bernstein, covering the E. Jean Carroll-Donald Trump case for NPR. Andrea, thanks as always.

Andrea Bernstein: Thank you. Great to talk to you and to your listeners.

Brian Lehrer: You bet. Brian Lehrer on WNYC. Stay with us. More to come.

 

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