Via Mother Jones, a good answer for a Democratic presidential primary contender (and I use the word “contender” as loosely as one can). But you can tell here that he’s not a lawyer.
Mayor de Blasio says the @NYPDnews will investigate the allegation that @realDonaldTrump raped writer E. Jean Carroll as soon as the NYPD receives a complaint. “We will find out the truth,” de Blasio says. pic.twitter.com/elCYsZk69e
— Grace Rauh (@gracerauh) June 22, 2019
No can do, thanks to a 2003 SCOTUS decision written by Stephen Breyer and joined by liberal stalwarts Ginsburg, Stevens, and Souter (plus Sandra Day O’Connor). A state can’t “revive” prosecution of an alleged crime that’s otherwise been barred by the statute of limitations. To do so violates the Constitution’s Ex Post Facto Clause. In the mid-90s, when Trump supposedly assaulted author E. Jean Carroll, the statute of limitations in New York for first-degree rape was five years. That was changed a decade later when the state legislature abolished the time limit for prosecuting rape cases, notes Mother Jones, but the courts like to maintain the legal fiction that the law as written serves as formal notice to citizens to guide their behavior. (The “fiction” part is that average people have any idea what the law is.) If the law said you won’t be prosecuted after five years on the day you committed a particular crime and you relied on that promise, it’d be unfair to break that promise after the fact. Plus, as SCOTUS noted in its opinion at the time, the statute of limitations represents a legislative judgment about when evidence might be so old as to no longer be fully reliable. How can evidence that would have been unreliable five years after the Trump/Carroll incident be reliable 25 years later?
The dissent, written by Anthony Kennedy and joined by Scalia, Thomas, and Rehnquist, would have allowed for the “revival” of previously time-barred prosecutions. It’s silly, they argued, to believe that criminals rely on the statute of limitations in planning their crimes. If a would-be criminal is given formal notice by the statute books that what he’s about to do is an offense, that’s all the notice he needs to justify a prosecution later. As for the legislature’s initial judgment that evidence in rape cases would be stale and unreliable after five years, so what? Why should that judgment bind the same legislature 10 years later if it changed its mind in the interim? DNA forensics advanced significantly in the years before New York abolished the statute of limitations for rape. (Carroll was asked this morning on CNN if there might be any, ahem, Trump DNA present on the clothes she was wearing that day, which she claims were never laundered afterwards.) If science can “revive” prosecutions of heinous offenses like rape, why the hell should the law stand in its way?
Thanks to O’Connor, the Court’s liberals won that argument. Trump can’t be prosecuted, which I assume means the NYPD can’t lawfully investigate him. How would de Blasio, who’s presently competing for Trump’s job, justify using police resources to investigate a criminal case which can’t be brought to court? It would look transparently like a mayor from one party abusing state assets to harass a political opponent from the other.
Carroll said in the same CNN interview that she’d consider filing a complaint with the NYPD but that her own lawyers had told her the statute of limitations bars a prosecution. As for her motives, she insisted that “I’m barely political. I can’t name you the candidates who are running right now.” Okay, but, er, she sounded political enough on MSNBC a few nights ago:
But when asked if she would consider bringing rape charges against Trump, Carroll gave a flat “No.”
Carroll explained that she feels as if it would “just be disrespectful” for her to make sexual assault about herself when it happens to women around the world.
“I would find it disrespectful to the women who are down on the border who are being raped around the clock, down there without any protection,” said Carroll. “They’re young women… It would just be disrespectful if I – you know – and mine was three minutes. I’m a mature woman. I can handle it. I can keep going. My life has gone on. I’m a happy woman.”
It would be “disrespectful” of women at the border who are being “raped around the clock” to seek justice for a heinous felony committed against her 25 years ago — by the president?
Via the Daily Beast, here’s Trump-hater Meghan McCain expressing some reservations about Carroll’s story. The media is signaling reservations too, with less coverage than you might expect despite Carroll’s appearances on CNN and MSNBC. I don’t think it’s skepticism that’s driving those reservations, though, as much as the sense that none of the allegations against Trump ever seem to change anyone’s opinion. At this point, accusing the sitting president of the United States of rape just isn’t “news.” If Carroll wants this story to grow bigger legs, she needs to convince the two friends in whom she allegedly confided after the incident with Trump to step up and let the public judge their credibility. That won’t change any votes either, but it might make people pay attention.