A former president of the United States daily rants about being the victim of a two-tiered system of justice and selective prosecution.  There is one way to find out whether there is any truth to his claim.  Employ the “Sesame Street” learning technique, “Which one is not like the other?”  Here are the options.

• On August 27, 2018, a jury found comedian Bill Cosby guilty of drugging and molesting Andrea Constand.  The former University of Arizona basketball star was represented by Gloria Allred, known for a series of high profile cases, many of which involved protection of women’s rights.
• On January 26, 2024, a jury ordered Donald Trump to pay journalist and former Vanity Fair advice columnist E. Jean Carroll $88.3 million for continuing to call her a liar after another jury found Trump liable for sexual assault and defamation.  Carroll was represented by the New York firm of Kaplan Hecker & Fink.  Lead counsel Roberta Kaplan is described by the Washington Post as “a brash and original strategist, with neither a gift for patience nor silence, a crusader for underdogs who has won almost every legal accolade imaginable.”
• On October 15, 2018, U.S. District Judge James Otero dismissed a defamation suit against Trump by adult film star Stormy Daniels.  On April 4, 2023, the Ninth Circuit Court of Appeals ordered Daniels to reimburse Trump for $121,000 in legal fees associated with the 2018 case.  In 2018, Daniels was represented by Michael Avenatti who is currently serving a 14-year prison sentence for fraud and embezzlement involving clients including Daniels and Nike.

If you guessed the outlier was the case involving Stormy Daniels you would be correct.  Carroll and Constand had the best legal counsel money could buy.  In contrast, as Daniels testified in Avenatti’s federal fraud trial she hired him because “other lawyers were afraid. I was out of options.”  There is one other difference.  Cosby was accused of criminal behavior.  The Carroll and Daniels cases involved only liability and civil penalties.  Therefore, we need to review the basis on which these two outcomes diverged in order to understand how Daniels was also the victim of “naked bias.”

In her closing argument on behalf of Carroll, Kaplan include the following:

Donald Trump is prepared to use his wealth and power to defame people whenever he wants. He ignored the last verdict as if it had never happened.  While Donald Trump may not care about the law, while he certainly doesn’t care about the truth, he does care about money.  [A large punitive award] is the only way to give Ms. Carroll a chance at a normal life again where she is not regularly bullied and humiliated by one of the most powerful men on the planet.

In Daniels’ case, U.S. District Judge James Otero dismissed the charge that Trump defamed Daniels when he tweeted she had lied in 2011 about being threatened not to go public with the story of her sexual encounter with the future president.  In his ruling, Otero referred to the Tweet as “rhetorical hyperbole normally associated with politics and public discourse in the United States.”  He called the lawsuit “a fishing expedition” and declared that Daniels had “failed to show that Trump acted with actual malice or reckless disregard for the truth.”

Following Otero’s ruling, Avenatti tweeted, “Trump’s contrary claims are as deceptive as his claims about the inauguration attendance.”  Clever, but not the fact based-response one would imagine if Roberta Kaplan or Gloria Allred were representing his client.

Much of the discussion about a two-tiered system of justice centers on money and power.  In this case, I believe it rests largely on the profession of the plaintiff.  Carroll was a respected journalist.  Constand, at the time of her assault, was director of operations for the Temple University women’s basketball team.  Stormy Daniels was a porn star.  That should not make a difference.  Of the three plaintiffs, Daniels may have paid the highest price.  Because she feared for the safety of her young daughter, she gave full custody to her ex-husband.  That fear was based largely on the threat she reported in 2011 in which the stranger who approached her car warned her, “Oh it’s a beautiful little girl, would be a shame if something happened to her mom. Forget about this story, leave Mr. Trump alone.”  Which is more credible?  The threat never happened.  Or a mother was willing to give up rights to her only child because she was honestly afraid and did not want her daughter to be collateral damage if someone tried to permanently silence her.

My question.  Beginning April 15, Donald Trump will face a jury of his peers who will decide if, in fact, he had a sexual encounter with Daniels and paid her to keep it quiet.  If he is found guilty, will the Ninth Circuit Court of Appeals apologize to Daniels and reverse the 2023 order for her to pay Trump’s legal expenses.  Contrary to Judge Otero’s finding, it would be clear Trump “…acted with malice [AND] with reckless disregard for the truth.”

For what it’s worth.
Dr. ESP

The ghost of Yogi Berra spoke to me this morning.  “It’s déjà vu all over again,”  he said.  He was referring to the student protests on college campuses in support of a ceasefire in the Israel/Hamas war.  He continued, “I’m surprised, you of all people, have not made this connection.  You were there.”

Berra was, of course, reminding me of the student protests against the war in Vietnam at my alma mater, the University of Virginia.  Not only was I there, I was an active participant.  My fraternity brother Jeffrey Kirsch summed it up best in a 50th anniversary retrospective in Virginia Magazine. “It was like a cultural train running through the University.  There was this awaking and outpouring of emotions and progressive instincts.”

The early days of the anti-movement at UVA were peaceful.  They consisted of teach-ins and student gathering, including a concert in the Old Cabell Hall lecture room, the same 850 seat auditorium where I attended Economics 101.  I helped organized the concert and even performed, choosing two songs I hoped would generate dialogue about a misguided policy in Southeast Asia.  “The Age of Aquarius” from the musical Hair and Simon and Garfunkel’s “A Poem on the Underground Wall.”

Protest movements are never  monolithic.  For every Martin Luther King, Jr. and the Southern Christian Leadership Council there is a Bobby Seale and the Black Panthers.  In 1969, UVA students who favored a more militant approach to opposing the war formed the Radical Student Union.  In hopes of stemming a shift he feared might become more extreme and even violent, another one of my fraternity brothers Robert Rosen led what became known as the Student Coalition, bringing together liberals, antiwar radicals and fraternity leaders.  A third fraternity brother Joel Gardner, who today is among the most conservative advocates of the free speech movement at UVA, writes in his memoir about the effort to keep the more extreme elements of the antiwar movement from hi-jacking growing sentiment against the war and other progressive causes including the lack of racial diversity on campus.

The key was to forcefully demonstrate that the forthcoming actions of the coalition did not represent the ideas of wide-eyed radicals and agitators, and that support for stronger actions to address the issues at the University was widespread.

Two events demonstrated how quickly the complexion of a peaceful protest movement can change.  First, President Richard Nixon’s announcement U.S. troops had been deployed in Cambodia followed by the killing of four students and wounding of nine others by Ohio National Guard troops at Kent State University.  Kirsch, who now served as a president of the Virginia Progressive Party, organized a fundraiser featuring Chicago Seven defendant Jerry Rubin and his attorney William Kunstler.  What Kirsch originally envisioned as a “classroom sized presentation,” was moved to University Hall, the indoor athletic arena, to accommodate the 9,000 students from UVA and surrounding universities who came to hear them speak.

Even Kirsch, who introduced Rubin and Kunstler, remembers his own trepidation as both speakers urged the audience to “liberate the president’s house.”  Immediately following their remarks, Kirsch rushed to Carr’s Hill, the president’s residence, to warn Edgar Shannon of what was about to happen.  In the 50th anniversary retrospective, Ernie Gates writes:

Out front, Kirsch faced the mob he had unintentionally helped to create. “People were inflamed,” he says. “I felt like it was my fault. It was my event.” A megaphone amplifying his words, Kirsch addressed the crowd. “I said, ‘This is not the right tactic. We should be going after a target that is more associated with the war effort—we should take the Navy ROTC building.’ I didn’t want to burn down Maury Hall—I was trying to protect Shannon and his family.”

And to the ROTC building they went, occupying it again and declaring it “Freedom Hall.” A photo from that night shows a scorched mattress that had been dragged from the building’s basement, possibly a remnant of an attempt to follow through on the cries of “Burn it down.” The smoke, however, eventually forced the protesters to abandon the building.

The next morning, all the news reports and images focused on the incident at the Navy ROTC building.  In a New York minute, the extremist fringe of the anti-war movement fractured a coalition, three years in the making.

I share this story in such detail because the same forces seem to be at play on college campuses today.  When I see peaceful student protests calling for a ceasefire in the Israel/Hama conflict and humanitarian aid to civilians, I do not believe the overwhelming majority are calling for the destruction of Israel nor do I believe they hold American Jews responsible for what strike so many as counterproductive policies of the Netanyahu government.  At UVA, a majority of students voted in favor of a resolution demanding the university divest its endowment funds in companies doing business with Israel.  The text is similar to a 1987 resolution in response to apartheid in South Africa.  The resolution did not include antisemitic language or call for the dissolution of Israel.  It only addressed government policies believed to be contrary to the rights and aspirations of Palestinians.

Unfortunately, there is an extreme fringe of the pro-Palestinian movement on campus that has threatened Jewish students and vandalized property.  Concerned parents of Jewish students believe President James Ryan has not done enough to protect their children.  Some are demanding he resign.  And once again, when the fringe elements of a social movement, regardless of the cause, make the headlines (i.e. get top billing), it only detracts from the greater purpose.

Which begs the question, where are leaders of the pro-Palestinian student movement, who like Jeffrey Kirsch acknowledge their role, even if unintentional, in creating a hostile atmosphere and say, “This is not the right tactic.”

For what it’s worth.
Dr. ESP