Circuit declines to reconsider Trump sexual assault case

Late last year, the Court of Appeals sustained the verdict against President Trump, who was accused of sexually assaulting E. Jean Carroll in a Bergdorf Goodman dressing room many years ago. The jury awarded Carroll a multi-million dollar verdict. Following that trial loss, Trump's lawyers asked the Court of Appeals to rehear the case en banc, which dispenses with the usual three-judge panel and allows all of the Circuit's active judges to take up the case. En banc review is rare in the Second Circuit, and that motion was denied in this case. What makes it interesting is that two judges dissented from the en banc denial order and would have taken up the case for rehearing.

The case is Carroll v. Trump. The en banc denial order issued on June 13. Four of the judges (all appointed by President Biden) explained in denying the en banc denial that the evidentiary rulings at trial, which favored Carroll's position, were not an abuse of discretion, and that the two dissenters (both appointed by Trump) "would have us stray far from our proper role as a court of review," in part because they raise several arguments in Trump's favor that his lawyers did not pursue on appeal.

The dissenters, Judges Menashi and Park, write that the evidence, particularly evidence that the trial court excluded at trial, made it more likely that Trump did not insult Carrol with "actual malice," the high standard of proof when a public figure is sued for defamation. One example is that Trump called her allegations a "hoax" because the case was funded by people affiliated with the Democratic Party; the district court excluded this evidence and limited cross examination, however. In addition, the dissenting judges write, the trial court improperly admitted adverse character evidence under Rule 404(b) relating to prior acts of sexual misconduct attributed to Trump, including two witnesses who claimed he assaulted them and the infamous Access Hollywood tape, where Trump said famous people can get away with anything, including grabbing women "by the pussy." This evidence was admitted pursuant to revisions to the Federal Rules of Evidence, which allows the jury to hear prior bad acts in sexual abuse cases even if they are not permitted in other cases. 

Two other judges, Chin and Carney (appointed by Democratic presidents) also submit an opinion in support of the en banc denial. They write that the original three-judge panel did not delve into the "actual malice" issue because Trump's lawyers did not pursue that argument on appeal. They note further that Congress amended the rules of evidence to expand the universe of admissible evidence in sexual assault cases, and that the dissenters advance a novel interpretation of these provisions that no Circuit court has ever adopted. In addition, the Rule 403 balancing test, which requires the trial court to weigh the cost/benefit of allowing controversial evidence at trial, is largely within the trial judge's discretion, and the Court of Appeals is loathe to second-guess that judgment.

En banc is rarely granted in the Second Circuit. The Court generally defers to the judgment of any given three-judge panel. That does not prevent lawyers from seeking en banc review. We all think our case is strong enough to merit a full-court hearing. When the Second Circuit denies such a motion, and the judges issue their own opinions about the merits of such a petition, we learn something about the judge's individual views on how the law should be interpreted. One lesson is that there are no easy answers in applying federal law, including the rules of evidence. 

The presence of a lengthy dissent in this case on the en banc petition makes it almost a certainty that Trump's lawyers will ask the Supreme Court to hear the case. If the Court takes the case, it will be the first time the Court has addressed the amendments to the Federal Rules of Evidence on the admissibility of certain evidence in sexual assault cases.