Naked Bias

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.