Trump loses appellate review of civil rape case

MANHATTAN (CN) — The Second Circuit won’t hear en banc President Donald Trump’s appeal of the civil rape verdict against him, a split court said Friday as the majority chided the president — and fellow judges — for attempting a redo.

“Simply re-litigating a case is not an appropriate use of the en banc procedure,” U.S. Circuit Judge Myrna Pérez, a Joe Biden appointee who was on the three-judge panel that affirmed Carroll’s $5 million jury award, wrote in a concurring opinion joined by three other female circuit judges.

“The panel opinion embraced a series of anomalous holdings to affirm the judgment of the district court,” wrote U.S. Circuit Judge Steven Menashi, one of two male, Trump-appointed judges who dissented.

He said that the lower court was wrong to exclude evidence of Trump’s state of mind at the time he denied that he raped writer E. Jean Carroll in the mid-1990s in a Bergdorf Goodman fitting room. In doing so, Menashi said, the lower court ensured Carroll met the actual malice standard in her defamation lawsuit.

The prior acts in question included trial testimony from two other women who say Trump sexually assaulted them, decades apart.

One witness, Jessica Leeds, said Trump kissed and groped her on an airplane in 1979 or 1980, and tried to put his hand up her skirt. “He was trying to kiss me, he was trying to pull me toward him, he was grabbing my breasts,” Leeds said. “It was like he had 40 zillion hands. It was a tussling match.”

Menashi criticized the trial court for allowing “stale witness testimony about a brief encounter” as well as “testimony about prior acts that were neither crimes nor sexual assaults.”

Pérez and the other members of the initial panel said their colleague overstepped by making Trump’s arguments for him. The actual malice argument, for instance, was not one Trump himself raised in his appeal.

“The dissenting opinion would have us stray far from our proper role as a court of review. Without acknowledging the deferential standard we are duty-bound to apply, the dissenting opinion offers several arguments, many of which were not raised by defendant to the panel or in his petition for rehearing,” Pérez wrote.

Trump — and Menashi — also took issue with jurors viewing the infamous “Access Hollywood” tape from 2005, in which Trump joked on a hot mic about women letting him sexually assault them because he is “a star."

The same year, according to trial testimony, Trump pushed a People magazine writer named Natasha Stoynoff against a wall during a Mar-a-Lago interview and started kissing her before a butler intervened. Stoynoff was writing a story about Donald and Melania Trump’s one-year wedding anniversary and the upcoming birth of their son, Barron.

“He was against me and just holding my shoulders back,” Stoynoff testified. “I didn’t say words. I couldn’t. I tried. I mean, I was just flustered and sort of shocked and I — no words came out of me. I tried, though. I remember just sort of mumbling.”

Each of the women — Carroll, Leeds and Stoynoff — described Trump forcing himself on them, persisting when they tried to shove him away and then publicly humiliating them when they came forward.

When confronted with Carroll’s accusations, Trump denied he’d ever even met Carroll, despite a photograph showing the two of them at an event in the 1980s. He even declared, “She’s not my type,” teeing up Carroll’s lawsuit.

While looking over that photo his deposition, Trump mistook Carroll for his second ex-wife, Marla Maples.

On Friday, the other two judges from the initial panel along with Pérez — Barack Obama-appointed U.S. Circuit judges Denny Chin and Susan Carney — chimed in with a statement opinion in support of the en banc denial.

“[T]he panel found no abuse of discretion, much less any manifest error, in the challenged district court rulings,” the unsigned opinion says.

Follow @NinaPullano