Trump v. Weinstein

And the unfortunate limits of "she said, she said, she said."

I often wake up these days feeling like I’m living in an alternate universe. Thursday was one such morning‌: At the same moment Donald Trump walked into a Manhattan criminal courtroom to face charges related to hush money payments made to a porn star he allegedly had sex with, in the same spot where ‌Harvey Weinstein was convicted of rape four years ago, Weinstein’s New York conviction was overturned.

Shield your eyes! Images via Getty; photo illo by me

‌These men represented‌ the polarities of the #MeToo movement — one, a watershed victory, the seeming rightful conviction of a man who had skirted rumors for decades, finally exposed by the bravery of his victims coming forward, the journalists who reported it, and the social movement it ignited. The other elevated to the highest office in the land despite more than a dozen‌ women speaking out against him, and the video evidence of his bragging about the very thing of which he was accused.

But now, the Trump and Weinstein story lines have seemingly reversed, or at least spectacularly collided: Trump is being hamstrung by legal claims, including a $83.3 million judgment on behalf of the writer E. Jean Carroll, whom he was found liable of sexually assaulting and defaming. On Thursday, he huffed and puffed in court, crossing his arms and scowling, as that infamous “Access Hollywood” tape again came back to haunt him in his criminal trial. Moments later, in a different courtroom, a federal judge rejected his bid for a new trial in the Carroll case.

On this upside down day, Weinstein, who has been locked up in the Mohawk Correctional Facility some 250 miles from New York City‌, serving 23 years while eating bologna sandwiches like the other inmates, had his ‌conviction thrown out on appeal. The decision was determined by a single vote, by a majority female panel of judges, who ruled that the trial ‌judge improperly allowed testimony from accusers who weren’t part of the charges against him — and “egregiously” erred in the process. ‌

All of this, I will admit, caught me off guard.

Those following Weinstein’s legal battles always knew there was a possibility for his conviction to be overturned on appeal, but many — including some of Weinstein’s own accusers — had happily stopped holding their breath.

It also seemed, in the four years since his conviction, and the seven since the #MeToo movement began, that we had entered a new age of legal accountability, not just for Mr. Weinstein, but for the abusers who’d come after him: Bill Cosby, R. Kelly, even Trump. Even as the #MeToo movement fell short in some ways, the Weinstein case felt like a clear cultural marker in which something irreversible had happened: The monster of #MeToo had been vanquished, and it changed something about the way we understood vulnerability and power.

And then, suddenly, it didn’t.

To be clear, Thursday’s ruling will not spring Weinstein from jail. He already faces an additional 16 years from a separate conviction in California, and will likely be sent there to continue his sentence.

But what the new ruling made clear was that, in allowing women not part of the case to testify, in what may have seemed from the outside like an obvious attempt to establish a pattern of coercion, actually violated a common legal precedent. In the process, it also established — perhaps somewhat glaringly, and grimly — the cavernous gap in what it takes to “believe women” in and out of the courtroom, even when it comes to the same man.

The collective nature of the Weinstein case, and those that followed, seemed to solve a problem that activists had labored over for decades: How do you combat the “he said, she said” nature of these cases? How do you get people to believe that, with very slim exception, most women who speak up are telling the truth?

As it turned out, persuasion came in the form of numbers — both in establishing a pattern and in helping women feel safe to come forward. Journalists helped bolster that framework, too — detailing patterns, repetitions, and often decades worth of paper trails. The women of the Weinstein story became “believable” to the public because there were simply too many of them, with too many similar details, over too many years, not to believe.

All of this helped usher in a new era of “believability,” one that has become almost synonymous with a preponderance of voices, joining together to corroborate an accusation. And yet, as we learned this week, inside the courtroom sometimes the opposite can be true: She said, she said, she said, she said can in fact unravel a prosecution.

It’s a bit of a mind-fuck, in that the very thing that brought Weinstein to account in the first place — that chorus of women’s voices, which together made the accusations against him utterly unimpeachable — seems to have suddenly worked in his favor‌.

Which raises the question: If #MeToo could move the cultural conversation beyond a single case of “he said, she said,” isn’t it time the legal system allowed the same?

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For more on this subject you can read my column about the strange gap between ‘believability’ in and out of the courtroom in today’s Times.

My colleague Jodi Kantor, who with Megan Twohey broke the original Weinstein story, also has a great analysis on why the case was risky from the start.

And Ronan Farrow has a piece in The New Yorker about what Weinstein’s overturned case means for Donald Trump.

Thanks for reading!

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