Former President Trump and his lead attorney, Joseph Tacopina, signaled on Tuesday they are likely to appeal the civil liability ruling in the case brought by E. Jean Carroll, which Fox News contributor Andrew McCarthy doubted would succeed.
Trump was found liable for sexual abuse and defamation but not of Carroll's rape claim, which she alleged occurred at the Bergdorf Goodman department store across from Trump Tower in 1996.
Former assistant U.S. attorney Andrew McCarthy told Fox News many or most U.S. jurisdictions expanded the admissibility of "propensity evidence" in cases such as Trump's, which he said can hurt the former president's chances of a successful appeal.
Trump has repeatedly claimed he has "no idea" who Carroll is and doesn't recall the alleged encounter on Fifth Avenue nearly 30 years ago.
The 2024 Republican presidential front-runner also lambasted the judge, Lewis Kaplan, pointing out he was named to the bench by President Clinton, a Democrat.
McCarthy said an appeals court will view the jury's verdict against Trump as "discriminating and careful" – "which is to say, they went through the evidence [and] decided not to find him liable for rape, but did find him liable for sexual abuse."
He said Carroll's claims were so far in the past that it would have been difficult to "forensically corroborate" whether Trump's alleged conduct met the stand for such a heinous crime as rape.
But, he also countered that those analysts agreeing with Trump that he has a strong appeal case may be still considering the case through the lens of the time period during which the encounter occurred, rather than present day.
The jury was shown the infamous "Access Hollywood Tape" during which Trump suggested that famous people could get away with sexual misconduct.
In the widely-circulated 2005 clip, Trump is heard telling host Billy Bush that some people can "grab" women by their genitalia without regard.
"The reason I think that testimony and the Access Hollywood tape is admissible -- and I might have agreed with [fellow attorney] Brian [Claypool] if this was like 1990, but beginning in the mid 1990s in sexual assault and molestation cases, the federal rules were expanded to make it easier to get what's known as ‘propensity evidence’ into cases involving sexual claims of sexual assault," McCarthy said.
He continued, "So normally we have a rule in the law that says we don't want to have somebody get convicted or found liable for the thing they're charged with on the basis of other similar things that they've done in the past. That presumption holds most of the time across the board, but it doesn't apply anymore in sexual assault cases."
He said the current legal climate has made it more difficult for courts to ignore such propensity evidence as the Bush exchange without taking it into account in their ruling-on-appeal.
Carroll's attorney, Roberta Kaplan, said in statement her client's win is a "victory… for democracy itself and for all survivors everywhere."