Former President Donald Trump did not appear in court for the start of his New York rape and defamation trial and experts think it could hurt his case.
The trial in longtime columnist E. Jean Carroll's rape and defamation lawsuit against the former president kicked off on Tuesday. Trump's attorneys have refused to say whether Trump would testify or even appear in court — at one point asking the judge in the case to tell jurors that Trump was "excused" from appearing due to "logistical burdens," which the judge rejected.
Judge Lewis Kaplan pressed Trump attorney Joe Tacopina on Tuesday on whether the former president would testify at the trial.
"The answer is: I'm not sure, your honor," Tacopina said.
"You're going to have to tell me — this week," Kaplan shot back, urging Trump's attorney to "fish or cut bait."
Former U.S. Attorney Harry Litman called Tacopina's response to the judge a "total blunder."
While Trump is not obligated to attend the trial, his absence "is a mistake" and "unlikely to go over well with the jury," warned former federal prosecutor Shan Wu.
Wu, a former sex crimes prosecutor, suggested in a Daily Beast op-ed that Trump likely made a "strategic choice" to show that the "claims are not serious enough to even warrant his attendance" but that could backfire.
Jurors on Tuesday saw Carroll's gaze "fixed on Tacopina" and her presence was a signal that she stands behind her allegations, Wu wrote, but the jury "had no view of Trump to compete with the sexual predator that Carroll's lawyer portrayed him to be."
Tacopina in court on Tuesday argued that the lawsuit was politically motivated and focused on the fact that the alleged rape occurred nearly 30 years ago and that other customers or staff would have noticed it.
"But it is now fairly commonly accepted that sexual assault survivors suppress the experience so Tacopina's argument that silence equals lying is likely not going to get much traction," Wu explained, adding that Tacopina's "dog-whistle" to the idea that rape victims cannot be believed unless they "fight back" is a "misogynistic viewpoint that will seem exactly that to a jury."
The trial is expected to include testimony from writer Natasha Stoynoff, who accused Trump of forcibly kissing her in 2005, and businesswoman Jessica Leeds, who accused Trump of sexually assaulting her on a flight in the 1980s.
"This type of evidence in trials is enormously damaging to defendants in sexual assault cases," Wu wrote, adding that it puts Trump in a position to have to "discredit not one victim but three."
Carroll's attorneys argued on Tuesday that the testimony of the other women will show "one clear pattern."
"Start with a friendly encounter in a semi-public place," attorney Shawn Crowley said, according to CNN. "All of a sudden pounce, kiss, grab, grope. Don't wait. When you are a star, you can do anything you want. And when they speak up about what happened, attack. Humiliate them. Call them liars. Call them too ugly to assault."
The jury will also hear the infamous "Access Hollywood" tape in which Trump bragged about groping women.
"You'll hear him bragging about doing almost the same thing he did to Ms. Carroll to other women," Crowley said, adding, "this is not locker room talk, it's exactly what he did to Ms. Carroll and other women."
Carroll is also expected to take the stand while Trump's legal team is likely to rely on his video deposition from last October.
"There's absolutely nothing more for him to add," Tacopina said Tuesday. "I don't want to distract from the focus of her story."
Tacopina claimed that Carroll and the other accusers "schemed to hurt Donald Trump politically" and told the jury that they are not there to consider the accounts of the other women.
"That's not for you to decide here," Tacopina said. "Those people have never made a claim. No one has ever told the police, including Ms. Carroll. No one. Because that would require a real investigation. No one has ever done that. But they want you to focus on anything but the E. Jean Carroll story because it is so incredible and so unbelievable."
Tacopina also argued that Carroll "did not produce any objective evidence to back up her claim because it didn't happen."
"She is abusing the system by advancing a false claim of rape for money, for political reasons and for status and in doing so she's really minimizing the true rape victims," Tacopina said. "She's exploiting their pain and their suffering."
MSNBC legal analyst Lisa Rubin noted on Twitter that Tacopina was flanked by other attorneys who were all white men while fellow Trump attorney Alina Habba was "nowhere to be seen."
"The absence of even a single woman at the defense table," Rubin wrote, "was not a great look in a case all about an alleged sexual assault."
