The Manhattan district attorney seeking to jail Donald Trump over his hush money payment to a porn star is seeking to potentially weaponize the same piece of damning evidence that nailed the former president at his rape trial: the deposition where he said stars like him get away with sexual harassment “unfortunately—or fortunately.”
It’s now up to a federal judge to decide whether those prosecutors can get a video that shows Trump at his worst: unapologetic about sexual assault, uttering misogynistic comments, and willing to lie to the American public to save his own skin.
It’s a testament to the breadth of Trump’s legal problems that we’re witnessing the collision of two totally separate cases: a civil defamation case about rape and a criminal case about a cover-up. And it all comes down to a closed-door question-and-answer session Trump had on Oct. 19, 2022.
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That shocking testimony first came out in a federal courtroom in May in New York City, where jurors ultimately decided that Trump did indeed sexually abuse the journalist E. Jean Carroll decades ago. In the video, the former president talked about his previous gloating that he could grab women “by the pussy”—and answered whether he felt that the rich and famous could get away with it.
“Historically that’s true with stars. If you look over the last million years, that’s largely true, unfortunately—or fortunately,” he said, later adding that he considers himself a star.
At the time, the video stunned those in the federal courtroom, going a long way to show how Trump remained defiant about his predatory sexual behavior. He called Carroll a liar and viciously attacked her female lawyer. At one point, he told the attorney, “You wouldn’t be a choice of mine either.”
Now, the Manhattan DA wants that video for his own criminal investigation.
According to court records, Manhattan prosecutors plan to use it to show the way Trump “dealt with allegations of a sexual nature,” which could get them closer to proving that he was desperate to keep the lid on bad news that could have sunk his 2016 campaign.
District Attorney Alvin Bragg Jr. is still collecting evidence ahead of the scheduled March 2024 trial in New York City, where Trump is accused of faking business records to cover up how he paid $130,000 to keep Stormy Daniels quiet about their brief sexual affair. It was a bid to save his 2016 presidential campaign from potentially catastrophic embarrassment, but the scheme to funnel payments through his lawyer and the subsequent criminal investigation could harm his current re-election campaign.
Trump faces 34 felony counts of falsifying business records, a paper crime that’s normally a misdemeanor—were it not for the allegation that Trump did it to cover up more serious crimes, like election fraud.
The DA claims that Trump’s hush money payments were part of a “catch and kill” scheme meant to keep the American people in the dark about allegations about him—hence why his sordid response to other sexual allegations could be relevant.
On May 15, Bragg’s prosecutors subpoenaed the law firm that represents Carroll. Susan Hoffinger, the office’s investigation division chief, wrote to attorney Roberta Kaplan and requested “the full transcript, full video recording, and all exhibits related to the videotaped deposition of Donald J. Trump.”
Two weeks later, Trump’s lawyers moved to block that subpoena, claiming that prosecutors are trying to “fish for impeachment material” that would harm the former president in court. They also claimed that the video was under some kind of protective order issued by the federal judge overseeing Carroll’s defamation case.
New York Supreme Court Judge Juan C. Merchan, who is overseeing that criminal case, issued a ruling on July 7 concluding that the prosecutors’ request was “not overbroad or otherwise inappropriate.” But he asked for a “clarification” from U.S. District Judge Lewis Kaplan himself. (The judge has repeatedly made clear he is not related to Carroll’s lawyer, Roberta Kaplan.)
The back-and-forth came into full view on Thursday, when the DA’s office asked the federal judge to weigh in. On Friday, Judge Kaplan gave Carroll and Trump until Wednesday to respond.
Joe Tacopina, the lawyer who defended Trump at his rape trial, declined to comment for this article. The DA’s office also did not elaborate on what exactly its prosecutors would do with the video.
In recent months, the DA’s case has gotten less attention than Trump’s other bubbling legal problems. Shortly after he was indicted in New York City for faking business records, the Department of Justice formally charged him yet another cover-up—this time, over his hoarding of classified records without authorization at his Mar-a-Lago mansion in South Florida.
As of this writing, Trump is expecting to be indicted two more times, in the District of Columbia over his role in the Jan. 6 insurrection, and in Atlanta over his attempts to disrupt the 2020 election there.
But the DA’s case remains scheduled as the very first one that will put a former president on trial facing criminal charges in American history. It’s still unclear if a conviction would send Trump to jail on Rikers Island, or whether his status as the leading Republican contender in the 2024 presidential race would afford him special treatment in the form of some kind of home confinement.
Trump has repeatedly called the Manhattan DA’s case—and all the other criminal investigations, for that matter—unfair political hit jobs.
