With E. Jean Carroll's trial against Donald Trump set to start in April, the former president's legal team has a new gambit they hope will dismantle her case and cast serious doubt on the claims that Trump raped her sometime in the mid-1990s.
The last-minute surprise centers on the one piece of physical evidence-an infamous black coat dress-that Carroll says she was wearing when he allegedly forced her against a wall at a Manhattan department store and sexually assaulted her.
For three years, Carroll has hectored Trump over the tantalizing prospect that his DNA is still on the dress-a prospect that's been made even more tantalizing because Trump won't submit to a DNA test.
So it seems like a bombshell development that, last week, Trump finally agreed he will-at some point-let his lawyers collect a sample of his DNA for comparison.
The truth, as with most things involving Trump, is far more complex.
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According to a source familiar with his defense team's new strategy, Trump's proposition has not yet been made to the opposing side. But if they follow through, it would position them to tell jurors his DNA was offered-just never tested.
Notably, the deadline for opposing sides to exchange evidence has already passed, convenient timing that's drawing criticism that Trump's offer is a trap.
"It sounds like a continuation of the dilatory tactics that Trump uses all the time," said Albert Scherr, a University of New Hampshire law school professor who serves as one of the nation's top experts on forensic DNA evidence. "As a general rule, Trump's lawyers in every venue have the strong propensity to delay and delay and muck things up."
Until now, the dress was supposed to be Carroll's ace up her sleeve.
At trial, the thinking was her attorneys could ask jurors to infer Trump's guilt by pointing to his refusal to test his DNA against the Donna Karan coat she wore on the day she claims he raped her. At a civil trial, it's like pleading the Fifth Amendment against self-incrimination; don't answer, and jurors can assume you're guilty as sin.
"It's referred to as 'consciousness of liability evidence.' You can draw an adverse inference from the fact that someone refused to participate in relevant scientific testing," said Edward J. Imwinkelried, a retired law professor at University of California, Davis.
But now, Trump's lawyers could shoot back with a counterpoint: He did offer his DNA. His accuser simply wouldn't test it.
Carroll's lawyer, Roberta Kaplan, declined to discuss the case for this story. And Trump's attorneys declined as well.
Legal scholars told The Daily Beast this "gotcha" tactic could convince jurors that there are, inexplicably, key unresolved issues that just shouldn't exist in such a long-running case-and reads more like a strategic public relations stunt.
But experts in the admissibility of DNA evidence in court also called the Trump team's latest move a mischievously smart response, given curious developments in the case.
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For three years, Carroll has consistently held up her dress as the key piece of damning evidence in her case. She launched her first shot in a Jan. 30, 2020 tweet: "The dress has been tested. We have the results."
It became national news that her attorney, Kaplan, served notice to Trump's lawyers that they sought a sample of Trump's DNA, who was then the sitting president. Carroll would periodically remind people that Trump's days were numbered.
"Cyrus Vance, the Manhattan District Attorney, has Trump's taxes. Fani Willis, the Georgia Prosecutor, has Trump's phone call. Mary Trump has her grandfather's will. And I have the dress. Trump is basically in deep shit," Carroll tweeted on Feb. 25, 2021.
The DNA angle wasn't totally bonkers. As Scherr told The Daily Beast, it's something of a longshot-but it's possible. Carroll claims she left the cursed garment hanging in her closet unworn for decades.
"DNA hangs out a lot longer than other stuff does, it's pretty well protected at a molecular level," he said. "It's very possible the DNA on that dress was deposited there 20 years ago. Not certain by any stretch, but it's nowhere near out of the realm of possibility."
Trump, however, wouldn't play ball.
At first, he summoned the colossal power of the Department of Justice to defend him, fending off what was initially her defamation claim seeking to punish him for using a White House podium to call her a liar. Then, out of public office, Trump's lawyers delayed the case with appeals.
Now, after New York passed a rape survivor law opening the door to decades-old claims, Carroll's legal team has filed a second lawsuit that aims to take down Trump the same way Bill Cosby was ruined by his rape victims in civil court. Those cases, dubbed Carroll I and Carroll II, have essentially merged and might be tried together in the upcoming trial.
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All the while, the dress remained a noose held above Trump's head-albeit a tenuous one. The lab report Carroll commissioned showed that scientists found skin cells on the outer surface of the coat dress's sleeves, and the results were potentially difficult to ascertain. There was a mix of at least four people, and at least one was male. Complicating matters, Carroll donned the dress for a photoshoot to accompany the New York magazine article where she first made the explosive claims. Scientists didn't seem to find what Carroll was looking for.
The Jan. 8, 2020 lab report, submitted in court, says that "acid phosphatase activity, a presumptive indication of the presence of semen, was not detected in any of thirty-three fluorescent stains tested on the dress." Instead, they found "some apparent animal hairs."
Yet, the dress remained a central focus for Carroll's team. At a New York City federal court hearing on Feb. 22, 2022, Carroll's lawyer went as far as to say it was more important than hearing testimony from the former president himself.
"We do not seek to depose President Trump. He can depose our client. He can depose the other two women who she told contemporaneously when it happened. And we'd like his DNA. That's it," Kaplan said, according to court transcripts.
But as the months went by, the dress faded into the background. In August, Carroll's team changed course, instead asking the federal judge to force Trump to testify in a sworn deposition because the other side wasn't sharing "a single document" of evidence. Kaplan cited radio silence from Trump's legal team, which was led by Alina Habba.
The judge intervened, and Kaplan eventually grilled the former president behind closed doors. In a scan of court documents and transcripts, the dress doesn't seem to have come up since.
That door recently closed. In separate orders, U.S. District Judge Lewis Kaplan (who is not related to Carroll's lawyer) set deadlines to exchange evidence and identify experts in November and early February.
Donald Trump's Rape Accuser E. Jean Carroll Files New Lawsuit Under Adult Survivors Act
"If you really want to get to the trial on the merits, you both comply with the discovery deadline. It's the rare case in which someone says we need to reopen discovery," said Imwinkelried, the retired law professor at UC Davis, who co-wrote the seminal legal treatise on this very subject, Scientific Evidence.
The sudden about-face by Trump came just as the former president hired a new powerhouse lawyer for his team on Jan. 31: celebrity defense attorney Joe Tacopina.
But the last-minute offer by Trump is something of a moot point. The California lab that tested the dress was commissioned by Carroll, so Trump's team can't just send it his DNA now and demand an answer. Even if they could, it wouldn't be admissible at trial unless the judge reopens discovery, which would delay the case.
And that's something that Judge Kaplan has no intention of doing. On Tuesday, he warned Trump's lawyers that the case is barrelling forward no matter what, ignoring Tacopina's request for a few extra weeks and setting the trial to start April 25.
Then again, if discovery is re-opened, Trump's DNA could be tested against the dress. And this last-minute gamble could backfire spectacularly if it tests positive.
In the end, what was promised as the most important piece of evidence in the case seems destined to amount to nothing more than a talking point before a jury.
"What's going on now behind the scenes is that each side is seeing how to posture themselves to take advantage of this," Scherr told The Daily Beast. "It was convenient for Carroll's side to stop asking for his DNA… and Trump's lawyers may be playing a game too."
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