Things have not been going well for Donald Trump's newest lawyer as he attempts to muster a defense in writer E. Jean Carroll's defamation lawsuit against Donald Trump. Lawyer Joe Tacopina's performance in the case continues to be widely panned, with former federal prosecutor Mitchell Epner calling's Monday's performance "an object lesson in how NOT to conduct a cross-examination in federal court."
None of that is particularly surprising. Joe Tacopina got the job for having the notable attributes of not yet being indicted, convicted, or disbarred. At this point, and with the sheer number of lawyers Trump needs to ward off even more dire legal threats elsewhere, Tacopina's qualifications don't need to be much higher than having a pulse and being willing to say things on television. It hasn't gone well from the beginning.
This week saw an exceptionally weird episode of Tacopina Theater, with the law-guy filing an 18-page call for a mistrial based on the judge allegedly being biased against him. It was an obvious Hail Mary attempt to shake something up as Carroll's credible testimony continues while Trump's side has been able to offer no substantial rebuttals and seems in no danger of coming up with any between now and the case's close.
There was no chance Judge Lewis A. Kaplan was going to grant the motion, and Epner's take on Kaplan is that he's not a judge who could be intimidated into accepting Tacopina's lesser requests of giving him more latitude in questioning Carroll. On the contrary, Kaplan has shown little tolerance for Tacopina's more spurious questions or inferences. That was the case when Tacopina attempted a gotcha line of questioning meant to suggest that Carroll harbored alarming resentments towards the nation's menfolk, all based on a line in Carroll's book that Tacopina either couldn't recognize as obviously satirical, or that he was hoping the jury wouldn't recognize as such.
That led to this brief courtroom exchange:
[Tacopina]. Okay. At one point I think in your book you propose we should dispose of all the men?[Carroll]. Into Montana.
Q. Into Montana?
A. Yeah, and retrain them.
Q. So retrain. So all the men here in this courtroom, in this country, all get shuffled off to Montana and get retrained.
A. You understand that that was said as a satire.
Q. Ah, Okay.
THE COURT: It comes from Jonathan Swift’s “A Modest Proposal” 700 years ago, right?
THE WITNESS: Yes.
THE COURT: Let’s move on.
MR. TACOPINA: Thank you, your Honor.
This one-sentence interjection is cited as a reason that Tacopina now wants a mistrial. The judge intervened to acknowledge the existence of satire, complete with an irritating reference to books and booklearning, and that made Tacopina look like a complete fool for being the only one in the room who didn't understand that "round up all men in America and send them to Montana for retraining" was intended as a joke. A spoof. A wee little skit, for funsies.
The judge making Tacopina look like an absolute tool and was terribly cruel, suggests Tacopina, and the trial cannot possibly move forward after the judge made passing reference to satire being around and recognizable for at least the last "700 years."
No, really. Tacopina filed a request for mistrial that attempted to make a whole big deal of this: “It was not for the Court to provide evidence from the Bench to corroborate Plaintiff’s position in a way that suggested to the Jury favoritism of any one party."
Is it favoritism, though? Is it really? Tacopina attempted to expose E. Jean Carroll as a man-hating monster, Carroll somewhat incredulously questioned whether he meant to take an obviously satirical proposal seriously, Kaplan interjected to clarify that she meant "satire" in the sense of Jonathan Swift's proposal to eat Irish babies being "satire," she confirmed it, and Kaplan told Tacopina to get on with things rather than trying to stitch together an anti-man conspiracy theory based on a passing written joke. Question, answer, done.
If anything, Tacopina might have had more success if he asked Kaplan to correct the record so that the jury knew that Jonathan Swift's canonical work of satire has actually been recognizable for 300 years, not the 700 years that Kaplan claimed. It would still be petty, but it'd at least have factual grounds to stand on.
There are plenty of ways Kaplan could have made Tacopina look the fool, if Kaplan wanted to do so. Judges have quite a bit of latitude when it comes to chastising lawyers who clog their courtrooms up with absurd and insulting arguments, but Kaplan didn't even do that. He was downright polite about it.
Most of us wouldn't make good judges, though, and it's not just because we are aware of the existence of Jonathan Swift. It's because most of us, when faced with a time-wasting, by-the-hour tool who pretends to not know what satire entails, couldn't resist torturing the man over it. Many of us would have loved to see Kaplan do something much more like this:
Q. Okay. At one point I think in your book you propose we should dispose of all the men? [...] So all the men here in this courtroom, in this country, all get shuffled off to Montana and get retrained.A. You understand that that was said as a satire.
Q. Ah, Okay.
THE COURT: It comes from Jonathan Swift’s “A Modest Proposal” 700 years ago, right?
A: Yes.
THE COURT: So when you proposed all men be sent to Montana, you did not mean it literally, no more than one of the most famous comedy authors of the last few centuries meant it when he proposed that a food shortage be lessened by snacking on children.
A: Correct.
THE COURT: By eating a heaping plate of babies.
A: Yes.
THE COURT: And in fact you would have to be a special kind of dim to not understand that a proposal to ship all the men in America to Montana so that American women could retrain them was almost certainly meant to be satire as well.
A: Right.
THE COURT: You'd have to be a complete illiterate, in fact. You'd have to have the reading comprehension of, let's say, a ripened pumpkin.
A: I suppose.
THE COURT: Because this is quite literally a form of humor that has been set into the English language for at least 300 years, to the extent that it would be recognizable to any vaguely literate individual in this country by the time the Declaration of Independence was written. You could pick up a copy of this one essay, back in the late 1700s, and understand it to be a joke, even if you were thumbing through it while simultaneously applying leeches to Benjamin Franklin's rear end in an attempt to diminish inflammation of the buttocks. You would still get that it was a joke.
A: Yes.
THE COURT: So if there was a person in this courtroom, in the year 2023, a person who claimed to have a law degree, necessitating a legal education, a person who was currently engaged in the practice of law who had the ability to search for and reference arcane legal errata in the process of arguing courtroom cases but who simultaneously was confused on whether exaggerated and transparently impossible proposals expressed with apparent sincerity were, in fact, satirical, you would probably think that that person was obviously lying to the court.
A: Well, they could also be astoundingly ignorant, I suppose.
THE COURT: Right. But you would normally not believe that a lawyer capable of practicing law on behalf of, say, a former president of the United States could be so ignorant. So devoid of basic comprehension skills. So ridiculously gullible.
A: ...
THE COURT: Hmm. Yes, point taken.
So there you go, Joe Tacopina. I'd say you got off pretty easy in the original exchange, and the judge was, if anything, quite professional about it. Now you've got the rest of us dreaming of being in a position to give you the sort of smackdown your "do you actually have plans to ship all American men to Montana" witness-probing really deserved.
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