It’s no surprise that Donald Trump‘s mistrial request in the E. Jean Carroll civil rape and defamation case was denied the day it was filed. U.S. District Judge Lewis Kaplan on Monday seemingly rejected out of hand the argument from Trump lawyer Joe Tacopina that he was being unfair. A Trumpian complaint if there ever was one, and Kaplan didn’t appear to think there was much to it.
Yet, one of the items on Tacopina’s laundry list of unfairness stood out as especially absurd. It dealt with literature, a controversial subject in the book-banning GOP these days. And it provides a lesson about one work Republicans might want to keep on the shelves.
Tacopina pointed to an exchange with Carroll on cross-examination about a reference in her book to sending all men to Montana for retraining. When he pressed her, Carroll pointed out that it was satire, suggesting that Tacopina was an idiot if he didn’t understand that. Then Kaplan interjected to note that Carroll’s satire comes from Jonathan Swift’s “A Modest Proposal,” a satirical essay from the 18th century that “proposed” poor Irish parents sell their children as food.
In his failed mistrial letter, Trump’s lawyer argued that it was inappropriate for the judge to chime in and provide this context. Tacopina’s letter went further by actually going through the trouble of distinguishing between Carroll’s and Swift’s satires, observing that Carroll referred to men while Swift referred to children. The point, Tacopina wrote, is that it was inappropriate for the judge to get involved because it showed favoritism.
Of course, Tacopina ran the risk of Kaplan’s interjecting when he touched on such an obvious point. Indeed, Carroll’s 2019 book is titled “What Do We Need Men For? A Modest Proposal.” The Swift reference is clear, and lawyers need to remember that the judge is always the smartest person in the room.
Kaplan didn’t need to weigh in on the literary point, but his doing so doesn’t create a mistrial.
