Judge to jurors in Donald’s rape/defamation trial: ‘Think twice before you go public’

[jserraglio]

THE ATLANTIC

AN OMINOUS WARNING TO THE E. JEAN CARROLL JURY

A Manhattan judge’s advice to jurors accurately reflects what the former president has done to democratic norms.

MAY 10, 2023
By Juliette Kayyem

After many trials, the judge will dismiss the jurors by thanking them for their time and public service. These words of gratitude are usually a formality, a polite nod to a key feature of our democratic process: defendants’ right, under the Seventh Amendment, to judgment by their peers in “Suits at common law.” Federal Judge Lewis A. Kaplan also offered a piece of practical advice to the Manhattan civil jury that had just found former President Donald Trump liable for sexually abusing E. Jean Carroll in a luxury department store’s dressing room in 1996: Kaplan told the jurors that they might not want to publicly identify themselves—“not now and not for a long time.” Those words were jarring and yet seemed wise in light of Trump’s habit of directing violence, threats, and general mayhem against the peaceful functioning of our democratic norms.

The judge’s advice sounded less like a legal requirement than like the words of a parent to an older teenager, imparted without any ability to enforce. Kaplan apparently did not give a specific reason for his statement. But he didn’t need to. Everyone knows how things can unfold for people who challenge Trump, and jurors who find against him in court are highly vulnerable to whatever he might do.

Trump’s political legacy is often measured by his policy impact: restrictions on immigration, lower taxes for the rich, conservative Supreme Court justices who deliver on a stridently right-wing agenda. Those changes are significant, but are also largely answerable through the same political process, voting, that made Trump only a one-term president. Trump’s real, enduring legacy is his successful introduction of violence, the threat of violence, and targeted harassment into the dynamics of our political system, as if they were all just a natural extension of democratic disagreement.

The January 6 insurrection is the most obvious example. Regardless of whether he directed the exact violence on Capitol Hill that day—which delayed, and came dangerously close to denying, the certification of Joe Biden’s election as president—Trump welcomed it. For weeks before, he encouraged a legal strategy of fake electors and promoted false allegations of voter fraud. His plans to remain in office could best be executed if Congress were hindered in performing its constitutional duty. Violence was part of the scheme, because it could buy Trump time to interrupt the proceedings, sow confusion, and perhaps intimidate his noncompliant vice president, Mike Pence, into fleeing the Capitol.

But the specter of violence was hardly new. From a presidential-campaign announcement that portrayed the U.S. as a victim of Mexican aggression, to a dark inauguration speech that described “American carnage,” to his use of social media to direct outrage toward elected officials and reporters who dared to get in his way, Trump understood how to whip some of his followers into a frenzy. Trump may seem irrational at times, but he is also a sophisticated student of incitement. His verbal technique promotes violence while allowing him plausible deniability. “Be there, will be wild!” he said on Twitter in the run-up to the January 6 riot. His language is intended to make its targets— including not only elected officials and judges but often just civil servants or average citizens—feel uncomfortable, defensive, vulnerable.

Concerns for jurors’ safety are commonplace in criminal trials involving mob figures. Kaplan was presiding over a civil trial. Yet even before the verdict, Trump was using his media platform, Truth Social, to attack the proceedings as a witch hunt. “The greatest witch hunt of all time,” he declared after the verdict. Hunt is an evocative term; it suggests that you are either predator or prey. Without overtly saying so, the judge was telling the jurors in the civil case: Don’t be prey. To allow yourself to be identified might gain you 15 minutes of fame, but the downside could be a whole lot worse. (Ironically, Kaplan was speaking in easily deciphered code, much as Trump does.)

Kaplan surely knows that the Manhattan judge who will oversee a criminal trial against Trump has faced threats. Trump has already promised to appeal Carroll’s victory, so perhaps Kaplan was speaking obliquely to avoid some future challenge to his objectivity. But Kaplan wasn’t being paranoid; he was acting pragmatically and cautiously, and he asked the same of the jurors.

“If you’re one who elects to speak to others and to identify yourselves to others, I direct you not to identify anyone else who sat on this jury,” Kaplan said from the bench. ”Each of you owes that to the other, whatever you decided for yourself.” The jurors have one more public duty: They have a continuing responsibility to protect others and, by extension, the sanctity of a jury trial protected by our Constitution. Because that, like many other processes that enshrine our democracy, is under threat.