Had you time-traveled back to 2023, and started telling people that President Donald Trump’s Justice Department would soon be trying to imprison a woman who had accused him of rape, most would likely have dismissed it as a paranoid #resistance fantasy.
Yet now, it appears to be reality. Reporting in both CNN and the New York Times suggests that the DOJ has opened a criminal inquiry into E. Jean Carroll, the journalist who successfully won $88.3 million in damages from Trump after federal juries determined he sexually abused her in 1996 and later defamed her. The allegation now under investigation, per reporting, is that Carroll committed perjury during a deposition for the case.
This is, without a doubt, an authoritarian abuse of power: the president weaponizing the Justice Department to go after one of his most prominent and effective critics. It is the kind of thing that you expect in a country like Turkey or Venezuela, where the justice system has been transformed into an enforcement mechanism for an authoritarian regime.
But the comparison also suggests why the case is less scary than it appears.
Unlike in those countries, where those targeted by the state have little plausible chance to fight back, Trump’s track record for prosecuting his opponents has been exceptionally poor. Due to a combination of his own attorneys’ incompetence, the jury system, and the genuine independence of America’s lower court judges, they’ve repeatedly failed to secure indictments — let alone actually imprison anyone.
The administration has repeatedly failed to present a credible case against former FBI Director James Comey, with its most recent indictment revolving around an allegedly threatening picture of seashells. In February, a grand jury rejected both its efforts to prosecute six Democratic lawmakers over a video calling on the US military to disobey unlawful orders. A criminal investigation into then-Federal Reserve Chair Jerome Powell backfired when senators threatened to block his replacement and was later halted. Just this week, federal judges threw out both a case against anti-ICE protesters in Chicago and the administration’s latest effort to imprison Kilmar Abrego Garcia.
“They seem to be choosing targets without the evidence to back convictions,” says Barb McQuade, a law professor at University of Michigan and former US attorney. “In the case of Carroll, a jury has already spoken on her credibility, and they believed her. It’s absurd to think that prosecutors would be able to reach a different result when this time the government, and not she, has the burden of proof, and by the much higher standard of guilt beyond a reasonable doubt.”
This pattern illustrates one of the central dynamics of the Trump administration over the past year: that they are clearly intent on building an authoritarian state, but lack both the competence and the strategic vision to overcome American democracy’s institutional barriers to true power consolidation.
And with the midterm election looming, they are running out of time.
Why the Carroll indictment is a sham
In September 2020, Carroll’s attorney told her that an outside source was helping fund her lawsuit against Trump (that source was Reid Hoffman, a Democratic mega-donor). Over two years later, during a trial deposition, Carroll was asked whether someone was “presently paying” her legal fees — and she said no.
The Justice Department’s case, per both CNN and the Times, centers on the theory that Carroll’s answer was perjury: that she knowingly lied in 2022 given the 2020 funding.
There are several glaring problems with this theory, but the biggest one is that a court has already decided this question in Carroll’s favor.
“Ms. Carroll plausibly represented that she had forgotten about the limited outside funding counsel obtained in September 2020 when this question was first posed to her in 2022, and the additional discovery did not indicate otherwise. Rather, it showed that Ms. Carroll simply was not involved in the matter of who was or was not funding her litigation costs,” the Second Circuit ruled in an unanimous decision denying an appeal from Trump.
And the burden of proof would be even higher in a criminal case, which is what federal prosecutors are reportedly pursuing. The Justice Department would need some kind of smoking-gun evidence that Carroll had knowingly lied about the funding, and there is no reason to believe that any such evidence exists.
“A conviction is just not going to happen,” McQuade concludes.
That the Justice Department would even bring such a weak case is, in her assessment, evidence of just how corrupted the process has become. Trump’s attorneys have to know that this case, like the repeated attempts to indict Comey, are not going anywhere legally — but they are filing them anyway because the president wants his opponents prosecuted and publicly humiliated.
“Ordinarily, DOJ policy prohibits prosecutors from indicting a case just because they have probable cause. The standard is that prosecutors should believe it probable that the evidence is sufficient to obtain and sustain a conviction,” McQuade says. “Filing criminal charges just to shame someone without the evidence to back it up is a violation of ethical standards and abuse of the Justice Department’s power.”
The wages of “haphazardism”
One could, theoretically, read the Carroll case in two opposed ways.
One could, by focusing on the basic impropriety of bringing the case in the first place, see it as evidence of the damage Trump has done to America’s democratic institutions. One could also focus more on the exceedingly high likelihood that the case will fail, and treat it as evidence of American democracy’s resilience in the face of an authoritarian chief executive.
These perspectives are not opposed, however, but actually two sides of the same coin. Trump’s second-term governing approach is best defined as “haphazardism,” a style of rule characterized by repeated and sustained individual attacks on America’s system of government that are legitimately dangerous, but also so poorly executed that they’re often self-undermining.
Trump is succeeding in wrecking elements of the American system: destroying the separation of powers and the norms of nonpartisan governance that defined the modern US civil service. But the wreck is incomplete — Trump has not demolished every barrier standing in his path to untrammeled power — which leaves democracy intact, if severely diminished in quality.
The Carroll case fits this pattern exactly. Trump has successfully demolished the norm of DOJ independence that would, in the post-Watergate era, have constrained the president from vindictive prosecution of a woman who proved in court that he assaulted her. Yet he has not been able to take the next step, of an Erdogan or Putin, and turn the courts into a rubber stamp that would translate prosecution into conviction.
This is because of the haphazardist character of Trump’s governance. Caring more about optics, with little attention to long-range planning, Trump demands that people immediately do what he wants — and hires the yes-men who will do it. He does not have a real plan for long-term power consolidation, a way to turn individual indictments into an actual effort to cow the political opposition. He just wants an indictment, and so he gets one — regardless of legal competence.
Few good lawyers are willing to follow this kind of rule, and it has shown. In a recent article, the New York Times’ Alan Feuer documented the extraordinary string of screw-ups by Trump’s DOJ that have led to an unprecedented number of grand juries, long seen as rubber stamps for federal prosecutions, failing to deliver indictments. Feuer sees these failures as a direct outgrowth of Trump’s push for political reprisals: The more petty and poorly argued cases he brings, the more grand juries and judges come to expect petty and poorly argued cases, and the more confident they feel in rejecting them.
The Trump effort to prosecute his enemies is simultaneously authoritarian in intent and weak in execution. Understanding this as an example of the general haphazardist pattern helps clarify just what Trump is doing to the American system of government — and how far-reaching the consequences will truly be.
The post The real lesson of the E. Jean Carroll investigation is Trump’s weakness appeared first on Vox.
